ri 
 
 
Cornell University Library 
 KF 7640.A3 1916 
 
 A Manual for courts-martial, courts of i 
 
 3 1924 020 025 452 
 
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 UNITED STATES GOVERNMENT 
 
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A MANUAL 
 FOR COURTS-MARTIAL 
 
 COURTS OF INQUIRY 
 
 AND OF OTHER PROCEDURE UNDER MILITARY LAW 
 
 REVISED IN THE JUDGE ADVOCATE GENERAL'S OFFICE 
 AND PUBLISHED BY AUTHORITY OF THE SECRETARY OF WAR 
 
 WASHINGTON 
 
 GOVERNMENT PRINTING OFFICE 
 
 1916 
 
 -*>■ 
 
Wab Depabtmbnt, 
 
 Document No. 560. 
 
 Office of the Judge Advocate General. 
 
War Department, 
 Office of the Chief of Staff, 
 Washington, November 29, 1916. 
 The Manual for Courts-Martial, Courts of Inquiry, and of other 
 Procedure under Military 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. 
 
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 courts-martial 13 
 
 Section IV. Judge advocate 15 
 
 Chapter IV. Courts-martial — Jurisdiction 17 
 
 Section I. Jurisdiction in general 17 
 
 Section II. Jurisdiction of general courts-martial 21 
 
 Section III. Jurisdiction of special courts-martial 22 
 
 Section IV. Jurisdiction of summary courts-martial 22 
 
 Section V. Jurisdiction of other military tribunals 23 
 
 Chapter V. Courts-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 64 
 
 Chapter IX. Courts-martial — Procedure during trial 65 
 
 Section I. Arraignment 65 
 
 Section II. 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 f ormer testimony 127 
 
 Section VIII. Presumptions 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 141 
 
 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. Miscellaneous 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 373 
 
 (b) 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 1912. 
 
 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; (6) 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 FOE 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 Or ARTICLES PRIOR TO 1912 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 example 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 Eevised 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 5 25, 30, 34, 36, 37, 38, 42, 45, 48, 52, 80, 82, 106, 107, 108, 
 112, 114, 117, 118, and 119. 
 
 2. Articles 1, 10, 11, 36, 37, 52, 53, 76, 87, and 101 of the Code of 
 1874, either wholly obsolete or embracing only matters properly 
 within the field of Army Regulations, have been dropped. 
 
 3. Related provisions have been brought together under five 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 
 
XII MANUAL FOR COURTS-MARTIAL. 
 
 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. XHI 
 
 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 MANUAL FOB COURTS-MAKTIAL. 
 
 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. 
 
 Januaet 1, 1917. 
 
ABBREVIATIONS. 
 
 A. R Army Regulations, 1913. 
 
 A. W Articles of War, Code of 1916. 
 
 Bishop Bishop's New Criminal Law, 8th edition. 
 
 Clark Clark's Criminal Law, 2d edition. 
 
 Clark and- Marshall The Law of Crimes, 2d edition. 
 
 Cyc Cyclopedia of Law and Procedure. 
 
 Davis A Treatise on the Military Law of the United States, 
 
 2d edition. 
 Digest Digest of Opinions of Judge Advocates General of 
 
 the Army, 1912. 
 
 Dudley Military Law and Procedure of Courts-Martial, 1910. 
 
 Greenleaf Law of Evidence, 16th edition. 
 
 R. S Revised Statutes of the United States, 1878. 
 
 Thompson Law of Trials. 
 
 Wharton Criminal Law, 9th edition. 
 
 Wigmore Law of Evidence. 
 
 Wigmore, P. C Pocket Code of Evidence. 
 
 Winthrop^ Military Law and Precedents, 2d edition, 1896. 
 
 xv 
 
The discipline and reputation of the Army 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. 
 
CHAPTEE I. 
 MILITARY JURISDICTION. 
 
 Pago. 
 
 Section I: Source and kinds of military jurisdiction 1 
 
 1. Source 1 
 
 2. Kinds l 
 
 (a) Military government 1 
 
 (5) 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) Courts-martial, general, special, and summary 2 
 
 (c) Courts of inquiry ; 2 
 
 Section III: Persons. subject to military law 2 
 
 4. Classes enumerated 2 
 
 (a) Begular Army, National Guard, and Volunteers 3 
 
 (6) Cadets 4 
 
 " (c) Marine Corps ; 4 
 
 (d) Medical Department of Navy serving with detached marines 4 
 
 (e) Retainers to the camp and others 4 
 
 (f) 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 grantee' 
 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. 
 
 70844°— 16 2* 1 
 
2 MANUAL FOB COTJETS-MAETIAL. 
 
 (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 (6) and (e) 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 
 
MILITABY JURISDICTION. 3 
 
 context shows that a different sense is intended, viz: (<z) The word "officer" 
 shall be construed to refer to a commissioned officer; (6) 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 Eegular Army of 
 
 the United States; all volunteers, from the dates of their muster or 
 
 acceptance into the military service of the United States; and all 
 
 other persons lawfully called, drafted, or ordered into, or to duty, or 
 
 for training in the said service, from the dates they are required by 
 
 the terms of the call, draft, or order to obey the same. 
 
 [Note. — (a) Regular Army. — The Regular Army of the United States, includ- 
 ing the existing organizations, shall consist of sixty-four regiments of Infantry, 
 twenty-five regiments of Cavalry, twenty-one regiments of Field Artillery, a 
 Coast Artillery Corps, the brigade, division, army corps, and army headquar- 
 ters, with their detachments and troops, a General Staff Corps, an Adjutant 
 General's Department, an Inspector General's Department, a Judge Advocate 
 General's Department, a Quartermaster Corps, a Medical Department, a Corps 
 of Engineers, an Ordnance Department, a Signal Corps, the officers of the 
 Bureau of Insular Affairs, the Militia Bureau, the detached officers, the 
 detached noncommissioned officers, the chaplains, the Regular Army Reserve, 
 all organized as hereinafter provided, and the following as now authorized by 
 law : The officers and enlisted men on the retired list ; the additional officers ; 
 the professors, the Corps of Cadets, the general army service detachment, and 
 detachments of Cavalry, Field Artillery, and Engineers, and the band of the 
 United States Military Academy ; the post noncommissioned staff officers ; the 
 recruiting parties, the recruit depot detachments, and unassigned recruits ; the 
 service school detachments ; the disciplinary guards ; the disciplinary organiza- 
 tions ; the Indian Scouts ; and such other officers and enlisted men as are now 
 or may be hereafter provided for. (Sec. 2, act of June 3, 1916, 39 Stat., 166.) 
 
 (b) Volunteers. — The volunteer forces shall be subject to the laws, orders, 
 and regulations governing the Regular. Army in so far as such laws, orders, 
 and regulations are applicable to officers or enlisted men whose permanent 
 retention in the military service, either on the active list or on the retired list, 
 is not contemplated by existing law. (Sec. 4, act of Apr. 25, 1914, 38 Stat., 347.) 
 
 (c) National Guard. — The National Guard, when called as such into the 
 service of the United States, shall, from the time they are required by the 
 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 Guard 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, from the date of their draft, stand dis- 
 charged from the militia, and shall from said date be subject to such laws and 
 regulations for the government of the Army of the United States as may be 
 applicable to members of the Volunteer Army. (Sec. Ill, act of June 3, 1916, 
 39 Stat, 211.) 
 
 (e) 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 FOR COURTS-MAKTIAL. 
 
 (6) Cadets. 
 
 (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, the 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 in time of war all such re- 
 tainers and persons accompanying or serving with the armies of 
 the United States in the field, both within and without the terri- 
 torial jurisdiction of the United States though not otherwise subject 
 to the Articles of War. 
 
 [Note. — In addition to the two classes (a) "retainers to the camp" and (6) 
 " persons serving with the armies of the United States in the field " who were 
 made subject to military jurisdiction by A. W. 60 of the code of 1806 (A. W. 
 63 of the revision of 1874), A. W. 2 of the 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 Army field clerks 
 and shall * * * be subject to the rules and Articles of War. (Sec. 1, act 
 of Aug. 29, 1916, 39 Stat, 625.)] 
 
 (h) Field clerks, Quartermaster Corps. 
 
 [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 Port 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 (art 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.] 
 
CHAPTEK II. 
 COURTS-MARTIAL— CLASSIFICATION— COMPOSITION. 
 
 Page. 
 
 Section I: Classification 5 
 
 5. Kinds 5 
 
 (a) General courts-martial 5 
 
 (6) Special courts-martial 5 
 
 (c) Summary courts-martial 5 
 
 Section II: Composition 6 
 
 6. Who competent to serve 6 
 
 Exceptions — 
 
 (a) Accuser or witness for prosecution 6 
 
 (6) Officers excepted by custom 6 
 
 7. Number of members 6 
 
 (a) General courts-martial 6 
 
 Reduction below quorum — Report by judge advocate 6 
 
 (&) 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 
 
 (b) 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 
 
 (5) 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; 
 (5) Special courts-martial; and 
 (<?) 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 FOE 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.] (&) 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 Mullan 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 
 
COUKTS-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 ante apply equally to a special court-martial 
 where its membership is reduced below the minimum required by law, 
 except that in the case of special court-martial the report by the judge 
 advocate will be made to the convening authority, who will, without 
 unnecessary delay, detail a sufficient number of qualified, 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. 
 
 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. 
 
 (5) 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, 19X6, 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' 
 Keserve Corps ordered to active service by the Secretary of "War (sec. 
 
» 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 (R. S. 1619, 1621), and 
 their eligibility to sit as members of courts-martial to try persons 
 subject to military law continues only during the time they are 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. (Mullan v. U. S., 140 U. S., 240.) 
 
 (5) 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. 
 
 (6) In addition to the persons subject to military law enumerated 
 in Chapter I, Section III, ante, the general court-martial also has 
 jurisdiction over any other person who by the law of war is subject 
 to trial by military 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. Bank of appointing authority 12 
 
 20. Power of appointing authority — How limited 12 
 
 Section II : Special courts-martial 12 
 
 21. Authorities enumerated, (o) to (i) 12 
 
 Exception — Appointing authority as accuser or prosecutor 12 
 
 22. Commanding officer as accuser or prosecutor 12 
 
 23. Bank of appointing authority 13 
 
 24. Commanding officer as member ] 3 
 
 Section III: Summary courts-martial 13 
 
 25. Authorities enumerated, (a) to (h) 13 
 
 26. When more than one officer present 13 
 
 27. When but one officer present 14 
 
 28. "Detachment " denned 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. 
 (o) 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 FOE COURTS-MARTIAL. 
 
 (g) The commanding officer of a (tactical) division. 
 
 (A) The commanding officer of a separate brigade. 
 
 (i) 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 U. S., 
 563) 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 E. S. 1326 to convene gen- 
 eral courts-martial for the trial of cadets only; the act of March 2, 
 1913 (37 Stat., 722), extended this authority to include all persona 
 (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 animus in the mat- 
 ter. He may, like any other officer, initiate an investigation of an 
 officer's conduct and formally prefer, as his individual act, charges 
 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; 
 
COUBTS-MAETIAIi BY WHOM APPOINTED. 11 
 
 or when the facts of an alleged offense are communicated to him, he 
 may direct a suitable officer, as a member of his staff, or the proper 
 commander of the accused, to investigate the matter, formulate and 
 prefer such charges as the facts may warrant, and having been sub- 
 mitted to him, he may revise and refer them for trial as in other 
 cases ; all this he may do in the proper performance of his official duty 
 without becoming the accuser or prosecutor in the case. Of course, he 
 can not be deemed such accuser or prosecutor where he causes charges 
 to be preferred and proceeds to convene the court by direction of the 
 Secretary of War or a competent military superior. (Digest, p. 154, 
 LXXII, I, 1.) It is not essential that the commander who convenes 
 the court-martial for the trial of an officer should sign the charges 
 to make him the "accuser or prosecutor" within the meaning of this 
 article. Nor is the fact that they have been signed by another con- 
 clusive on the question whether the convening commander is the 
 actual accuser or prosecutor. The objection that such commander is 
 such, calls in question the legal constitution of the court, and while 
 such objection, if known or believed to exist, should regularly be in- 
 terposed at or before the arraignment it may be taken during the trial 
 at any stage of the proceedings. If not admitted by the prosecution 
 to exist, the accused is entitled to prove it like any other issue. (For 
 decisions as to when the convening authority is the accuser or prose- 
 cutor, see Digest, p. 155, LXXII, I, 1, a ; p. 155, LXXII, I, 2 ; p. 
 156, LXXII, I, 3, a; p. 156, LXXII, I, 3 a (1).) 
 
 18. Power to appoint an attribute of command. — As the authority to 
 appoint general courts-martial is an attribute of command, a com- 
 manding officer can not delegate to another officer such as his adju- 
 tant or any other staff officer or subordinate the authority to appoint 
 a court, detail an additional member, or relieve a member. If the 
 authority to appoint a general court-martial is vested by law in a 
 commanding officer he retains that authority, wherever he may be, 
 so long as he continues to be such commanding officer. In the absence 
 of orders or legislation, personal presence within the territorial limits 
 of his department is not essential to the validity of commands given 
 by a department commander to be executed within the department. 
 Therefore he may appoint a court-martial while absent from Lis 
 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 FOK 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. E. 17.) 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. R. 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- 
 pointed by the following authorities (A. W. 9) , viz : 
 
 (a) The commanding officer of a district. 
 
 (i) The commanding officer of a garrison. 
 
 (c) The commanding officer of a fort. 
 I (d) The commanding officer of a camp. 
 
 (e) The commanding officer of any place other than (a), (b), (o), 
 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 (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 17, supra, for determining when a com- 
 mander is the accuser or prosecutor apply equally to trials by special 
 
COTJRTS-MABTIAL — 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. Bank 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. 
 (6) 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 thoiigh the latter may be serving at an auxiliary or 
 branch station. (Bui. 46, War Dept., Oct. 24, 1914.) 
 
14 MANUAL FOB COURTS-MAKXIAL. 
 
 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, ho 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, b.) 
 
 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. E. 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 by the regimental commanders. 
 
COTJBTS-MABTIAL BY WHOM APPOINTED. 15 
 
 Section IV. 
 JUDGE ADVOCATE. 
 
 30. Power to appoint. — For each general or special court-martial the 
 authority appointing the court shall appoint a judge advocate, and 
 for each general court-martial one or more assistant judge advocates 
 when necessary. (A. W. 11.) 
 
 31. Duties of judge advocate and assistant judge advocates. — For dis- 
 cussion of the duties of the judge advocate and his assistants see 
 Chapter VII, Sections II and III. 
 
CHAPTER IV. 
 COURTS-MARTIAL— JURISDICTION. 
 
 Page. 
 
 Section I : Jurisdiction in general 17 
 
 32. Jurisdiction 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.) 
 
 70844°— 16 3* 17 
 
18 MANUAL FOE 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 command- 
 ing officers. Their jurisdiction is entirely criminal. 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. 
 
 (b) That the persons who sat upon the court were legally com- 
 petent to do so. 
 
 (c) That the court thus constituted was invested by the acts of 
 Congress with power to try the person and the offense charged. 
 
 (d) That its sentence was in accordance with law. 
 
 " Persons, then, belonging to the Army and the Navy are not sub- 
 ject to illegal or irresponsible courts-martial, when the law for con- 
 vening them and directing their proceedings of organization and for 
 trial have been disregarded. In such cases, everything which may 
 be done is void — not voidable, but void ; and civil courts have never 
 failed, upon a proper suit, to give a party redress, who has been 
 
COURTS-MARTIAL — JURISDICTION". 19 
 
 injured by a void process or void judgment. * * * When we 
 speak of proceedings in a cause, or for the organization of the court 
 and for trials, we do not mean mere irregularity in practice on the 
 trial, or any mistaken rulings in respect to evidence or law, but a dis- 
 regard of the essentials required by the statute under which the 
 court has been convened to try and to punish an offender for an 
 imputed violation of the law." (Dynes v. Hoover, 61 TJ. S., 81 ; see 
 also Deming v. McClaughry, 113 Fed. Eep., 650; McClaughry v. 
 Deming, 186 U. S., 63; Mullan v. United States, 140 TJ. S., 240; Ex 
 parte Tucker, 212 Fed. Eep., 569; and A. W. 37.) 
 
 35. Procedure when military and civil jurisdiction concurrent. — Courts- 
 martial have exclusive jurisdiction to try persons subject to military 
 law for all purely military crimes and offenses ; they have concurrent 
 jurisdiction with, the proper civil courts to try such persons for 
 civil crimes and offenses denounced and punished under A. W. 92, 
 93, 94, and 96. (For limitation as to the crimes of murder and 
 rape, see A. W. 92.) In accordance with a principle of comity as 
 between the civil and military tribunals in cases of concurrent 
 jurisdiction the jurisdiction which first attaches in a particular case 
 is entitled to proceed to its termination. This is, however, not an 
 inflexible rule and need not govern the action of the military authori- 
 ties in the case of an accused person demanded by the civil authorities 
 to answer for an offense which is primarily one against the civil 
 community. 
 
 When any person subject to military law, except (a) one who is 
 held by the military authorities to answer, or (5) who is awaiting 
 trial, or (c) result of trial, or (d) who is undergoing sentence for a 
 crime or offense punishable by the Articles of War, is accused of a 
 crime or offense committed within the geographical limits of the 
 States of the Union and the District of Columbia, and punishable 
 by the laws of the land, the commanding officer is required, except 
 in time of war, upon application duly made, to use his utmost en- 
 deavor to deliver over such accused person to the civil authorities. 
 or to aid the officers of justice in apprehending and securing him, in 
 order that he may be brought to trial. Any commanding officer who 
 upon such application refuses or willfully neglects, except in time 
 of war, to deliver over such accused person. to the civil authorities 
 or to aid the officers of justice in apprehending and securing him 
 shall be dismissed from the service or suffer such other punishment 
 as a court-martial may direct. 
 
 When, under the provisions of this article, delivery is made to 
 the civil authorities of an offender undergoing sentence of a court- 
 martial, such delivery, if followed by conviction, shall be held to 
 interrupt the execution of the sentence of the court-martial, and 
 the offender shall be returned to military custody, after having 
 
20 MANUAL FOB COTJBTS-MABTIAL. 
 
 answered to the civil authorities for his offense, for the completion 
 of the said court-martial sentence. (A. W. 74.) When offenses 
 against the peace and good order of civil communities are committed 
 by persons subject to military law, the proper military authorities 
 will be prompt in the preferring of charges and the arraignment 
 of offenders, having due regard for arrangements existing for the 
 purpose of securing between the authorities of the two jurisdictions, 
 civil and military, mutual aid and cooperation in the administration 
 of justice. In such cases, if, after charges are preferred, the officer 
 competent to order trial by the proper court-martial deems it inad- 
 visable to bring th«T case to trial, he will hold the offender and for- 
 ward the charges, with his views thereon, to The Adjutant General 
 of the Army. 
 
 36. Can not be divested by act of accused. — A court-martial having 
 once duly assumed jurisdiction of a case, can not, by any wrongful 
 act of the accused, be ousted of its authority or discharged from its 
 duty to proceed fully to try and determine according to law and its 
 oath. Thus the fact that, after arraignment and during the trial, the 
 accused has escaped from military custody furnishes no ground for 
 not proceeding to a finding, and, in the event of conviction, to a 
 sentence, in the case ; and the court may and should find and sentence 
 as in any other case. During such absence it is proper for his counsel 
 to continue to represent him in all respects as though present. 
 
 37. Not territorial. — Military jurisdiction is not territorial. It ex- 
 tends as to persons legally subject to it to offenses committed by them 
 in any place whatsoever, whether within or beyond the territorial 
 jurisdiction of the United States. 
 
 38. When terminated — Rule stated. — The jurisdiction of courts-mar- 
 tial over officers, cadets, and soldiers ordinarily ends when they 
 become separated from the service. The following are, however, 
 exceptions to this general rule: 
 
 (a) If any person, being guilty of any of the offenses of fraud, 
 embezzlement, etc., against the United States, while in the military 
 service of the United States, receives his discharge or is dismissed 
 from the service, he shall continue to be liable to be arrested and held 
 for trial and sentence by a court-martial in the same manner and to 
 the same extent as if he had not received such discharge nor been 
 dismissed. (A. W. 94.) 
 
 (b) 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 
 date of making of such application for trial, or if such court, being 
 
COURTS-MARTIAL — JURISDICTION. 21 
 
 convened, does not award dismissal or death as the punishment of 
 such officer, the order of dismissal by the President shall be void. 
 (E. S. 1230.) 
 
 [Note.— In time of peace no officer shall be dismissed except in pursuance o'. 
 the sentence of a court-martial or in mitigation thereof. (A. W. 118.) ] 
 
 (c) All persons under sentence adjudged by courts-martial remain 
 subject to military law, while under such sentence. (A. W. 2.) 
 
 (d) Where a soldier obtains his discharge by fraud, the discharge 
 may be canceled and the soldier arrested and returned to military 
 control. He may also be required to serve out his enlistment and 
 may be tried for his fraud. (Digest, p. 457, XVI, A. 3.) 
 
 (e) An honorable discharge releases from the particular contract 
 and term of enlistment to which it relates, and does not therefore 
 relieve the soldier from the consequences of a desertion committed 
 during a prior enlistment. (Digest, p. 462, XXII, A.) A dishonor- 
 able discharge does not relate to any particular contract or term of 
 enlistment; it is a discharge from the military service as a punish- 
 ment — a complete expulsion from the Army — and covers all unex- 
 pired enlistments. A soldier thus dishonorably discharged can not 
 be made amenable for a desertion or other military offense committed 
 under a prior enlistment except as provided in A. W. 94. Nor would 
 a subsequent enlistment after such dishonorable discharge operate to 
 revive the amenability of the soldier for such offenses. (Digest, p. 
 462, XXII, B.) 
 
 [Note. — For an offense committed prior to the expiration of his term of en- 
 listment, a soldier may be held in the service and tried after the expiration of 
 his term. So, also, a soldier may be tried for offenses committed while making 
 good time lost through desertion, through absence without leave, through dis- 
 ease or injury, the result of his own misconduct, etc., under A. W. 107.] 
 
 Section II. 
 JURISDICTION OF GENERAL COURTS-MARTIAL. 
 
 39. Persons and offenses — General courts-martial have power (A. W. 
 
 12) to try— 
 
 (a) Any person subject to military law, for 
 
 (5) Any crime or offense made punishable by the Articles of War. 
 
 [Note. — No officer shall be brought to trial before a general court-martial 
 appointed by the Superintendent of the Military Academy. (A. W. 12.)] 
 
 In addition they have power to try — 
 
 (c) Any person other than (a) above, who by the law of war is 
 subject to trial by military, tribunals, for 
 
 (d) Any crime or offense in violation of the law of war. 
 
 40. Limits of punishment — Exception. — Punishment upon conviction 
 is discretionary with a general court-martial, except — 
 
 (a) When mandatory under the law, or 
 
 ( o ) When limited by order of the President under A. W. 45 ; in 
 addition, 
 
22 MANUAL FOR COXJKTS-MAKTIAL. 
 
 (c) The death penalty can be imposed only when specifically 
 
 authorized. 
 
 [Note. — The death penalty is mandatory in the case of spies (A. W. 82) ; dis- 
 missal is mandatory for conduct unbecoming an officer and gentleman (A. W. 
 05) ; either death or imprisonment for life is mandatory for murder and rape 
 (A. W. 92) ; punishment is mandatory in part and discretionary in part for 
 false muster (A. W. 56), false returns (A. W. 57), officer drunk on duty in time 
 of war (A. W. 85), and personal interest in the sale of provisions (A. W. 87). 
 For limits of punishment fixed by the President under A. W. 45, see Chapter 
 XIII, post, Punishments.] 
 
 Section III. 
 
 JURISDICTION OF SPECIAL COURTS-MARTIAL. 
 
 41. Persons and offenses. — Special courts-martial shall have power 
 (A. W. 13) to try— 
 
 (1) Any person subject to military law, except — 
 
 (a) An officer; 
 
 (b) Any person subject to military law belonging to a class or 
 classes excepted by the President, for 
 
 (2) Any crime or offense (not capital) made punishable by the 
 
 Articles of War. 
 
 [Note. — Cadets and soldiers holding a certificate of eligibility for promotion 
 are excepted from the jurisdiction of Special Courts-martial.] 
 
 The following are capital crimes and offenses under the Articles of 
 
 War, viz : 
 
 (1) Peace offenses. — (a) Assaulting or disobeying a superior officer 
 (A. W. 64) ; (b) mutiny or sedition (A. W. 66) ; (c) failure to sup- 
 press mutiny or sedition (A. W. 67). 
 
 (2) War offenses. — (a) Desertion (A. W. 58) ; (b) advising or 
 aiding another to desert (A. W. 59) ; (c) misbehavior before the 
 enemy (A. W. 75) ; (d) subordinates compelling commander to 
 surrender (A. W. 76) ; (e) improper use of countersign (A. W. 77) ; 
 (/) forcing a safeguard (A. W. 78) ; (g) relieving, corresponding 
 with, or aiding the enemy (A. W. 81) ; (A) spies (A. W. 82) ; (i) 
 misbehavior of sentinel (A. W. 86). 
 
 42. Limits of punishment. — A special court-martial shall not have 
 power to adjudge — 
 
 (a) Dishonorable discharge, nor 
 
 (b) Confinement in excess of six months, nor 
 
 (c) Forfeiture of more than six months' pay. 
 
 [Note. — (a) Reduction to the ranks in the case of noncommissioned officers 
 and (ft) reduction in classification in the cases of first-class privates are within 
 the limits of the punishing power of special courts-martial. (Act of Mar. 2, 
 1913, 37 Stat., 722.)] 
 
 Section IV. 
 
 JURISDICTION OF SUMMARY COURTS-MARTIAL. 
 
 43. Persons and offenses. — Summary courts-martial shall have power 
 (A. W. 14) to try— 
 
 (1) Any person subject to military laAv, except — 
 (a) An officer; 
 
COURTS-MARTIAL — JURISDICTION. 23 
 
 (b) A cadet; 
 
 (c) A soldier holding the privilege of a certificate of eligibility to 
 promotion ; 
 
 (d) A noncommissioned officer who objects thereto (without the 
 authority of the officer competent to bring him to trial before a gen- 
 eral court-martial) ; 
 
 (e) Any person belonging to a class or classes excepted from the 
 jurisdiction of summary courts-martial by the President. 
 
 (2) Any crime or offense (not capital) made punishable by the 
 
 Articles of War. 
 
 [Note. — For list of capital crimes under the Articles of War see Sec. Ill, 
 par. 41, supra.] 
 
 44. Limits of punishment. — A summary court-martial shall not have 
 power to adjudge — 
 
 (a) Dishonorable discharge, 
 
 (i) Confinement in excess of three months, nor 
 
 (c) Forfeiture of more than three months' pay. 
 
 Exception. — When the summary court officer is also the command- 
 ing officer, no sentence of such summary court-martial adjudging 
 confinement at hard labor or forfeiture of pay, or both, for a period 
 in excess of one month shall be carried into execution until the same 
 shall have been approved by superior authority. (A. W. 14.) 
 
 [Note. — (a) Reduction to the ranks in the case of noncommissioned officers 
 and ( 6 ) reduction in classification in the cases of first-class privates are within 
 the limits of the punishing power of summary courts-martial. (Act of Mar. 2, 
 1913, 37 Stat, 723.)] 
 
 Section V. 
 JURISDICTION OF OTHER MILITARY TRIBUNALS. 
 
 45. When concurrent with courts-martial. — The provisions of the 
 Articles of War conferring jurisdiction upon courts-martial shall 
 not be construed as depriving military commissions, provost courts, 
 or other military tribunals of concurrent jurisdiction in respect to 
 offenders or offenses that by the law of war may be lawfully triable 
 by sueh military commissions, provost courts, or other military 
 tribunals. (A. W. 15.) 
 
CHAPTER V. 
 COURTS-MARTIAL— PROCEDURE PRIOR TO TRIAL. 
 
 Page. 
 
 Section I: Arrest and confinement 25 
 
 46. Arrest or confinement of accused persons 25 
 
 47. Who may order arrests 26 
 
 (a) Commmanding officers 26 
 
 (5) Judge advocates 26 
 
 (c) Courts-martial 26 
 
 48. Arrest, how executed 26 
 
 49. Status of officer in arrest 26 
 
 50. Arrest of officer without preferring charges 26 
 
 51. Arrest of medical officer 27 
 
 52. Arrest and confinement of soldiers 27 
 
 53. Status of noncommissioned officers in arrest 27 
 
 54. Abuse of authority to arrest 27 
 
 55. Refusal to receive and keep prisoners 28 
 
 56. Placing prisoners in irons 28 
 
 57. Releasing prisoners without proper authority • 28 
 
 Section II : Arrest of deserters by civil authorities 28 
 
 58. Authority for apprehension 28 
 
 59. Authority of citizens other than peace officers to arrest deserters 28 
 
 60. Minority of deserter 29 
 
 Section I. 
 ARREST AND CONFINEMENT. 
 
 46. Arrest or confinement of accused persons. — (a) An officer charged 
 with crime or with a serious offense under the articles of war shall be 
 placed in arrest by the commanding officer, and in exceptional cases 
 an officer so charged may be placed in confinement by the same 
 authority. 
 
 (b) A soldier charged with crime or with a serious offense under 
 the articles of war shall be placed in confinement, and when charged 
 with a minor offense he may be placed in arrest. 
 
 (o) Any other person subject to military law charged with crime 
 or with a serious offense under the articles of war shall be placed in 
 confinement or in arrest, as circumstances may require; and when 
 charged with' a minor offense such person may be placed in arrest. 
 Any person placed in arrest under the provisions of this article 
 
 25 
 
26 MANUAL FOB COTJBTS-MABT1AL. 
 
 (A. "W. 69) shall thereby be restricted to his barracks, quarters, or 
 tent, unless such limits shall be enlarged by proper authority. Any 
 officer who breaks his arrest or who escapes from confinement before 
 he is set at liberty by proper authority shall be dismissed from the 
 service or suffer such other punishment as a court-martial may direct ; 
 and any other person subject to military law who escapes from con- 
 finement or who breaks his arrest before he is set at liberty by proper 
 authority shall be punished as a court-martial may direct. (A. W. 69. ) 
 
 [Note. — A failure to place a person subject to military law in arrest or con- 
 finement or the disregard of any custom or formality connected therewith does 
 not affect the jurisdiction of a court.] 
 
 47. Who may order arrests. — (a) Only commanding officers have 
 
 power to place officers in arrest, except as provided in A. W. 68. 
 
 [Note. — The " commanding officer " thus authorized is the commander of the 
 regiment, separate company, detachment, post, department, etc., in which the 
 officer is serving. Digest, p. 481, I D. 1.] 
 
 (b) A judge advocate of a court-martial has no authority to place 
 in arrest an officer or soldier about to be tried by the court, or to com- 
 pel the attendance of the accused before the court by requiring a non- 
 commissioned officer to bring him, or otherwise. These are duties 
 which devolve upon the convening authority or upon the post com- 
 mander or other proper officer in whose custody or command the ac- 
 cused is at the time. (Digest, p. 498, IV, B, 5.) 
 
 (c) A court-martial has no control over the nature of the arrest or 
 other status of restraint of a prisoner except as regards his personal 
 freedom in its presence. It cannot place an accused person in arrest 
 or confinement nor can the court, even with a view to facilitate his de- 
 fense, interfere to cause a close arrest to be enlarged. The officer in 
 command is alone responsible for the prisoners in his charge. (Davis, 
 p. 62.) 
 
 48. Arrest, how executed. — An officer is placed in arrest by his com- 
 manding officer in person or through another officer, by a verbal or 
 written order or communication, advising him that he is placed in 
 arrest, or will consider himself in arrest, or words to that effect. 
 
 49. Status of officer in arrest. — An officer in arrest can not exercise 
 command of any kind. He will not wear a sword nor visit officially 
 his commanding or other superior officer, unless directed to do so. 
 His applications and requests of every nature will be made in 
 writing. (A. E. 926.) 
 
 50. Arrest of officer without preferring charges. — Officers will not be 
 placed in arrest for light offenses. For these the censure of the 
 commanding officer will generally answer the purpose of discipline. 
 Whenever a commanding officer places an officer in arrest without 
 preferring charges, he will make a written report of his action to 
 the brigade or Coast Artillery district commander, stating the cause. 
 The brigade or Coast Artillery district commander, if he thinks the 
 
COURTS-MARTIAL — PROCEDURE PRIOR TO TRIAL. 27 
 
 occasion requires, will call on the officer arrested for any explanation 
 he may desire to make, and take such other action within his au- 
 thority as he may think necessary, forwarding the papers, with hia 
 recommendation, to the department commander, who will, in case a 
 trial is not deemed advisable, forward the papers to The Adjutant 
 General of the Army for file with the officer's record, or for further 
 action. In the case of officers belonging to organizations not attached 
 or belonging to a brigade or Coast Artillery district, the report will 
 be sent directly to the officer exercising general court-martial juris- 
 diction. (A. E. 924.) 
 
 51. Arrest of medical officer. — In ordinary cases where inconvenience 
 to the service would result from it, a medical officer will not be 
 placed in arrest until the court-martial for his trial convenes. 
 (A. R. 925.) 
 
 52. Arrest and confinement of soldiers.— Except as provided in A. W. 
 C8, or when restraint is necessary, no soldier will be confined without 
 the order of an officer, who shall previously inquire into his offense 
 (A. R. 930) ; it is proper, however, for a company commander to 
 delegate to noncommissioned officers of his company the power to 
 place enlisted men in arrest as a means of restraint at the instant 
 when restraint is necessary, but such action must be reported to the 
 company commander at once. (Digest, p. 481, 1, E, 1. ) 
 
 53. Status of noncommissioned officer in arrest. — Noncommissioned 
 officers will not be confined in company with privates if it can be 
 avoided. When placed in arrest, they will not be required to perform 
 any duty in which they may be called upon to exercise authority or 
 control over others, and when placed in confinement, they will not 
 be sent out to work. 
 
 54. Abuse of authority to arrest. — The fact that cases of officers put 
 in arrest " at remote military posts or stations " are excepted from 
 the application of A. W. 70 does not authorize an abuse of the power 
 of arrest in these cases. And where, in such a case, an arrest, con- 
 sidering the facilities of communication with the department head- 
 quarters and other circumstances, is in fact unreasonably protracted 
 without trial the officer is entitled to be released from arrest upon 
 a proper application submitted for the purpose. (Digest, p. 152, 
 LXXI, C.) Though an officer, in whose case the provisions of 
 A. W. 70 in regard to service of charges and trial have not been 
 complied with, is entitled to be released from arrest, he is not author- 
 ized to release himself therefrom. If he be not released in accordance 
 with the article he should apply for his discharge from arrest, 
 through the proper channels, to the authority by whose order the 
 arrest was imposed, or other proper superior. (Digest, p. 153, 
 LXXI, D.) When an officer is placed in arrest in the operation of 
 A. W. 69 and subsequently tried he is not entitled to be released from 
 
28 MANUAL FOB COUBTS-MAKTIAL. 
 
 arrest, as a right, until the proper reviewing authority has acted on 
 the record of his case. (Digest, p. 152, LXV, C.) 
 
 55. Refusal to receive and keep prisoners. — No provost marshal or 
 commander of a guard shall refuse to receive or keep any prisoner 
 committed to his charge by an officer belonging to the forces of the 
 United States, provided the officer committing shall, at the time, 
 deliver an account in writing, signed by himself, of the crime or 
 offense charged against the prisoner. Any officer or soldier so refus- 
 ing shall be punished as a court-martial may direct. (A. W. 71.) 
 
 [Note. — A. W. 72 requires every commander of a guard to submit a report 
 in writing to his commanding officer within twenty-four hours after the confine- 
 ment of a prisoner (or as soon as he is relieved from his guard) showing (a) 
 the name of such prisoner, (6) the offense charged against him, and (c) the 
 name of the officer committing him. Such report is ordinarily contained in the 
 " Guard report " and presented to the commanding officer by the old officer of 
 the day at guard mounting. For duty of commanding officers to surrender 
 prisoners to civil authorities, see par. 35.] 
 
 56. Placing prisoners in irons — Prisoners will not be placed in irons 
 except in the extraordinary case of a prisoner who, in the judgment 
 of the commanding officer, is a desperate or dangerous character, in 
 which case report of action and the circumstances will be immediately 
 made to the department or tactical division commander. When a 
 prisoner is removed from irons a report of that action will be made to 
 the department or tactical division commander. A prisoner may be 
 shackled or handcuffed while being transported from one post to an- 
 other, or from a post to a penitentiary, when, in the judgment of the 
 officer in charge, the escape of the prisoner can not otherwise be pre- 
 vented. (A. E. 935.) 
 
 57. Releasing prisoner without proper authority. — Any person subject 
 to military law, who, without proper authority, releases any prisoner 
 duly committed to his charge, or who, through neglect or design, 
 suffers any prisoner so committed to escape, shall be punished as a 
 court-martial may direct. (A. W. 73.) 
 
 Section II. 
 ARREST OF DESERTERS BY CIVIL AUTHORITIES. 
 
 58. Authority for apprehension. — It shall be lawful for any civil 
 officer having authority under the laws of the United States, or of 
 any State, Territory, District, or possession of the United States, to 
 arrest offenders, summarily to arrest a deserter from the military 
 service of the United States and deliver him into the custody of 
 the military authorities of the United States. (A. W. 106.) 
 
 59. Authority of citizens other than peace officers to arrest deserters. — 
 The statute conferring authority upon civil officers to apprehend 
 and deliver deserters (A. W. 106) should not be construed as taking 
 away the authority for their apprehension by a citizen under an 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL. 29 
 
 order or direction of a military officer, but the legislation should be 
 treated as providing an additional means of securing the arrest of 
 deserters by conferring authority upon civil officers to apprehend 
 them without military orders — leaving the former method still legal. 
 The offer of reward for the apprehension and delivery of a deserter, 
 coupled with the act of Congress which provides for the payment 
 of such a reward, is considered sufficient authority for the arrest of 
 the deserter by a citizen. (C-17327-A, July 20, 1909.) 
 
 60. Minority of deserter. — The right of the United States to arrest 
 and bring to trial a deserter is paramount to any right of control over 
 him by a parent on the ground of his minority. (See Digest, p. 401, 
 III, G; In re Cosenow, 3T Fed. Rep., 668; In re Kaufman, 41 Fed. 
 Eep., 876 ; and compare In re Grimley,. 137 TJ. S., 147, and in In re 
 Morrissey, 137 U. S., 157.) 
 
CHAPTEE VI. 
 COURTS-MARTIAL— PROCEDURE PRIOR TO TRIAL. 
 
 [Continued.] 
 
 Paga 
 
 Section I: Preparation of charges 31 
 
 61. Definitions 31 
 
 62. Who may initiate charges 32 
 
 63. Who may prefer charges 32 
 
 64. Signing charges 32 
 
 65. Accumulation of charges 32 
 
 66. Duplication of charges 33 
 
 67. Consolidation of charges: ■ 33 
 
 68. Refusal to submit to medical treatment 33 
 
 69. Joint charges 34 
 
 70'. Charges not to be preferred upon uncorroborated confession 34 
 
 71. Charges for private indebtedness 35 
 
 72. Numbering charges and specifications 35 
 
 73. Additional charges 36 
 
 74. Rules to be observed in pleading 36 
 
 (a) Statement of charge 36 
 
 (6) Statement of specification 36 
 
 (c) Alternative pleading 36 
 
 (d) Evidence not to be pleaded 37 
 
 (e) Specific articles, when used 37 
 
 (/) Forms for charges 37 
 
 (jr) Time and place 37 
 
 (h) Christian name 38 
 
 (*) Charging under alias 38 
 
 (j) General prisoners 38 
 
 (k) Change of rank 39 
 
 (I) Written papers and oral statements 39 
 
 (to) Scandalous and disgraceful offenses 39 
 
 (n) Desertion followed by fraudulent enlistment 39 
 
 (o) Larceny and sale of public property 39 
 
 (p) Wording of statute to be followed 40 
 
 Section II: Action upon charges 40 
 
 75. Submission of charges 40 
 
 76. Investigation of charges 40 
 
 77. Prompt action required 41 
 
 78. Determination of proper trial court 41 
 
 79. Disposition of copies of charges 42 
 
 80. Service of charges upon accused 42 
 
 Section I. 
 PREPARATION OF CHARGES. 
 
 61. Definitions- — A charge corresponds to a civil indictment. It 
 consists of two parts — the technical "charge," which should designate 
 
 31 
 
32 MANUAL FOR COURTS-MARTIAL. 
 
 the alleged crime or offense as a violation of a particular article of 
 war or other statute, and the "specification" which sets forth the 
 facts constituting the same. The requisite of a charge is that it 
 shall be laid under the proper article of war or other statute; of a 
 specification, that it shall set forth in simple and concise language 
 facts sufficient to constitute the particular offense and in such man- 
 ner as to enable a person of common understanding to know what 
 is intended. The general term " charges," in the sense that the 
 word " charge " is used in the first sentence of this paragraph, 
 includes any number of technical charges and their specifications. 
 [Note. — For forms for changes see Appendix 4.] 
 
 62. Who may initiate charges. — Military charges, though commonly 
 originating with military persons, may be initiated by civilians. 
 Indeed, it is but performing a public duty for a civilian who becomes 
 cognizant of a serious offense committed by an officer or a soldier to 
 bring it to the attention of the proper commander. A charge may 
 likewise originate with an enlisted man. But by the usage of the 
 service all military charges should be formally preferred by — that is, 
 authenticated by the signature of — a commissioned officer. Charges 
 proceeding from a person outside the Army and based upon testi- 
 mony not in the possession or knowledge of the military authorities, 
 should, in general, be required to be sustained by affidavits or other 
 reliable evidence, as a condition to their being adopted. (Digest, p. 
 482, II, B.) 
 
 63. Who may prefer charges. — Any officer may prefer charges. An 
 officer is not disqualified from preferring charges by the fact that 
 he is himself under charges or in arrest. (Digest, p. 483, II, C.) 
 
 64. Signing charges. — The officer preferring charges will sign his 
 name following the last specification, adding his rank and organiza- 
 tion in the Army. 
 
 The signing of charges, like orders, with the name of an officer, 
 adding "by order of" his commander, is unusual and not to be 
 recommended. (Digest, p. 487, II, D, 12, a.) The signature of 
 the officer preferring charges forms no part of the charges them- 
 selves, but such signature will nevertheless he copied into the record 
 of trial by a general or special court-martial, in order that it may 
 affirmatively appear whether the officer preferring the charges (who 
 is prima facie the accuser) sat as a member of the court. (See A. W. 
 8,9.) 
 
 65. Accumulation of charges. — It may sometimes be expedient, where 
 the offenses are slight in themselves and it is deemed desirable to 
 exhibit a continued course of conduct, to wait, before preferring 
 charges, till a series of similar acts have been committed, provided 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL. 33 
 
 the period be not unreasonably prolonged; but, in general, charges 
 should be preferred and brought to trial immediately or presently 
 upon the commission of the offenses. Anything like an accumula- 
 tion or saving up of charges, through a hostile animus on the part 
 of the accuser, is discountenanced by the sentiment of the service. 
 (Digest, p. 490, II, F, 2.) 
 
 66. Duplication of charges. — The duplication of charges for the same 
 act or omission will be avoided except when, by reason of lack of 
 definite information as to available evidence, it may be necessary to 
 charge the same act or omission as constituting two or more distinct 
 offenses. When the same act or omission in its different aspects is 
 charged as constituting two or more offenses, the court, even though 
 it arrives at a finding of guilty in respect of two or more specifica- 
 tions, should impose punishment only with reference to the act or 
 omission in its most important aspect, and if this rule be not ob- 
 served by the court the reviewing authority should take the neces- 
 sary action. Thus a soldier should not be punished for disorderly 
 conduct and for assault, when the disorderly conduct consisted in 
 making the assault. And so, a person subject to military law should 
 not be charged under A. W. 61 for failure to report for a routine 
 duty at a time included in a period for which he is charged with 
 absence without leave under, the same article; otherwise, when the 
 duty is not a routine duty. Routine duties are those that are regu- 
 larly scheduled, such as reveille, retreat, stables, fatigue, schools, 
 drills, and parades, but do not include practice marches or other 
 previously specially appointed and important exercises, of which 
 the accused is chargeable with notice. 
 
 67. Consolidation of charges. — Ordinarily all the charges against the 
 accused should be consolidated into one set of charges, and one trial 
 had upon the consolidated set instead of having two or more trials, 
 one upon each set. To avoid taking up unnecessarily the time of a 
 court with minor offenses, where charges are preferred for serious 
 offenses, there should not be joined with them charges for minor 
 derelictions, unless the latter serve to explain the circumstances sur- 
 rounding- the serious charges. For instance charges for desertion 
 should not ordinarily be joined with charges for losing through neg- 
 lect Government property of small value; nor should charges for 
 willful disobedience of the orders of a commissioned officer ordinarily 
 be joined with charges for an absence from a routine duty. 
 
 68. Refusal to submit to medical treatment. — An officer or soldier may 
 be charged for refusing to submit to a surgical operation or medical 
 treatment at the hands of the military authorities if it is designed 
 to restore or increase his fitness for service, and is without risk of 
 life. 
 
 70844°— 16 4* 
 
34 MANUAL FOB COU HXS- MAKT1AL. 
 
 , A soldier who refuses to submit to a surgical operation that the 
 attending surgeon certifies is without risk to his life and is neces- 
 sary for the removal of a disability that prevents the full perform- 
 ance of any or all military duties that properly can be required of 
 him will, for such refusal, be brought to trial by general court- 
 martial ; but if in any such case the attending surgeon is in doubt as 
 to whether the proposed operation involves risk to life, the soldier 
 will not be brought to trial but will be discharged on surgeon's cer- 
 tificate of disability. (G. O. 43, War Dept., 1906.) 
 
 69. Joint charges. — Where two or more persons jointly and in pur- 
 suance of a common intent commit a crime or offense which can be 
 committed by a combination of persons acting in concert, they may 
 be separately charged and tried for such crime or offense or may be 
 jointly charged and jointly tried. The actual presence of all of the 
 accused persons at the actual commission of the offense is not neces- 
 sary, for all who take part in the enterprise are equally guilty, 
 though they may be absent from the place of actual commission of 
 the offense with which they are charged. The fact that justice may 
 require that different degrees of punishment be awarded to the dif- 
 ferent parties constitutes no objection to such a joint prosecution. 
 The mere fact of their committing the same offense together and at 
 the same time, although material as going to show concert, does not 
 necessarily establish it. Thus the fact that several soldiers have ab- 
 sented themselves together without leave will not, in the absence of 
 evidence indicating a concert of action, justify their being arraigned 
 together on a joint charge, for they may merely have been availing 
 themselves of the same convenient opportunity of leaving. Nor is 
 desertion, unless in execution of a conspiracy, chargeable as a joint 
 offense. (Digest, p. 484, II, D, 7.) In joint charges the form of 
 the charge does not differ from that in other charges. The form of 
 specification will read as follows: 
 
 In that Private , Company , Infantry ; Private , 
 
 Company , Infantry ; and Private — . Company , 
 
 Infantry, acting jointly, and in pursuance of a common intent, did [here allege 
 the offense in the language prescribed where the offense is committed by only 
 one person]. 
 
 The right of challenge may, of course, be exercised by each of the 
 
 accused. 
 
 [Note. — In cases of joint trials, the judge advocate will, in case a stenographer 
 is employed, have one carbon copy of the proceedings made for each of the 
 accused requesting the same.] 
 
 70. Charges not to be preferred upon uncorroborated confession. — 
 Charges should not be preferred for an offense unless there is some 
 evidence other than the confession of the accused that the offense 
 has been committed. This applies particularly in cases of fraudulent 
 
COURTS-MARTIAL — PROCEDURE PRIOR TO TRIAL. 35 
 
 enlistment. The mere confession by the accused that he had prior 
 service, or was under a certain disability at the time he enlisted, 
 and concealed that fact should not be made the basis for charges 
 unless there is something confirming the confession. Charges should 
 not be preferred in such cases until corroborating evidence that the 
 offense was committed has been secured, or that, the existence of such 
 evidence being ascertained, the necessary steps to obtain it have been 
 taken. (See par. 225.) 
 
 71. Charges for private indebtedness. — The military authorities will 
 not attempt to discipline officers and soldiers for failure to pay dis- 
 puted private indebtedness or claims — that is, indebtedness or a 
 claim where, in the opinion of the military authorities, there is a 
 genuine dispute as to the facts or law — nor will the military authori- 
 ties attempt to decide such disputed indebtedness or claims. If the 
 indebtedness is disputed the creditor should resort to the civil courts 
 to establish the liability. If, in the opinion of the military authori- 
 ties, the facts and law are undisputed and there appears to the mili- 
 tary authorities to be a private indebtedness, and the officer or soldier 
 does not claim to have a legal or equitable set-off or counterclaim to 
 urge against it, an officer may be brought to trial if his failure is con- 
 sidered to be a violation of A. W. 95 or A. W. 96, and a soldier may 
 be tried if his failure is considered to be a violation of A. W. 96, but 
 no action will be taken by the military authorities to. enforce pay- 
 ment. If an officer or soldier by his conduct in incurring the in- 
 debtedness or by his attitude toward it or his creditor thereafter 
 reflect discredit upon the service to which he belongs, he should be 
 brought to trial for his misconduct. If the facts and law, in the 
 opinion of the military authorities, are undisputed and there appears 
 to the military authorities to be no indebtedness, the department will 
 take no further action. Where a soldier was largely indebted and 
 failed to pay his indebtedness and the commanding officer denied the 
 soldier all pass privileges until the indebtedness was paid, it was 
 held that such action on the part of the commanding officer consti- 
 tuted an attempt to enforce payment of the indebtedness and was 
 contrary to the policy of the War Department and such action should 
 be revoked. (Digest, p. 878, IV.) 
 
 72. Numbering charges and specifications. — Where there are several 
 specifications under one article, the usual procedure is to place them 
 all' under one charge, rather than to make several charges with one 
 specification under each. Where there are several specifications under 
 one charge they will be consecutively numbered, and where there are 
 several charges, the charges will be consecutively numbered. 
 
36 MANUAL FOB. COUKT&-MAKTIAL. 
 
 73. Additional charges. — New and separate charges which are pre- 
 ferred after others have been preferred are known in military law 
 as " additional charges." Such charges may relate to past transac- 
 tions which were not known by or brought to the attention of the 
 officer framing or ordering the original charges at the time they 
 were preferred; or they may, as is more frequent, arise from acts 
 of the accused subsequent to his arrest or confinement on the original 
 charges. Thus, if after charges have been preferred he commits a 
 " breach of arrest," an additional charge will properly be preferred 
 in the case, and should be designated as an "additional" charge. 
 Charges of this character do not require a separate trial, but may 
 and preferably should be tried by the same court that tries the 
 Original charges, and at the same time subject to the limitation re- 
 garding service of charges contained in A. W. 70. If practicable to 
 consolidate the two sets of charges this should be done, otherwise 
 the second set will be denominated " additional " charges. The ac- 
 cused must, however, be arraigned on the additional charges before 
 the court is sworn to try the original charges. After the court has 
 been duly sworn to try the original charges " additional " charges 
 can not be tried with the original ones, but must be separately tried. 
 (See Winthrop, pp. 225, 226.) 
 
 74. Kules to be observed in pleading. — (a) Statement of charge. — 
 The charge should be limited to a statement of the article violated, 
 as " Violation of the 58th article of war," or " Violation of the 85th 
 •article of war." Common law and statutory crimes, not specified in 
 the Articles of War, over which courts-martial have jurisdiction 
 should, if not capital, be charged under A. W. 96. 
 
 (b) Statement of specification. — The specification need not possess 
 the technical nicety of an indictment. In general a bald statement of 
 the facts in simple and concise language, and in such a manner as to 
 enable a person of common understanding to know what is intended 
 is sufficient, provided the offense itself be distinctly and accurately 
 described. More specifically, (1) the name, rank, title, and organiza- 
 tion of the accused person, if he belongs to the Army of the United 
 States, should be stated, or if he is a civilian he should be so de- 
 scribed that it appears he is a person subject to military law, or by 
 statute or the law of war, is subject to trial by military tribunals; 
 (2) the facts that constitute the offense charged will be set out briefly 
 but clearly, together with the place and time of commission. Care 
 should be taken that all the elements of the offense as denounced in 
 the article of war or other statute are set forth. The specification 
 must be appropriate to the charge. (See Winthrop, p. 18&, and 
 authorities there cited.) 
 
 (c) Alternative pleading. — A specification should not allege two 
 offenses in the alternative. For example, an offense under A. W. 84 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL. 37 
 
 can not be charged by the words, " did sell or through neglect lose." 
 If, as the result of an investigation, there is doubt whether the prop- 
 erty has been sold or lost, both offenses may be charged under sepa- 
 rate specifications. Care will be taken in every case where an article 
 of war includes two or more offenses to see that each specification 
 alleges but a single offense. (See Digest, p. 487, II, D, 11, d.) 
 
 (d) Evidence not to be pleaded. — It is not good pleading in al- 
 leging an offense to state the circumstances or evidence proving or 
 tending to prove it, such as the acts, occurrences, and matters of de- 
 
 • scription, which should properly form part of the testimony of 
 witnesses; but there is no objection to stating very briefly in the 
 specification the immediate result or effect of the act charged as a 
 circumstance of description illustrating the character and extent of 
 the offense committed. For instance, in charging a striking or doing 
 of violence to a superior officer under A. W. 64, it is allowable, in a 
 case where the assault was fatal, to add in the specification, " thereby 
 causing his death," as indicating the measure of violence employed. 
 (Digest, p. 488, II, D, 14, a.) 
 
 (e) Specific articles, when used. — When a crime or offense is spe- 
 cifically provided for in an article of war, the charge will be laid 
 under that article and not under the general article, i. e., under A. W. 
 96. This rule is particularly to be observed when the crime or offense 
 falls under an article which prescribes a fixed punishment. (See, 
 however, A. W. 37.) 
 
 [Note. — In charging offenses against cadets for violation of regulations of the 
 Military Academy, the offense, if covered by a specific article applicable to 
 cadets, will be laid under that article (G. O. 64, War Dept, 1906), otherwise it 
 will be laid under the general article.] 
 
 (/) Forms for charges. — The forms for charges and specifications 
 set forth in Appendix 4 cover most of the offenses that are tried by 
 military courts and covered in the maximum-punishment order. 
 These forms may be followed, in the cases to which they apply, but 
 they are not mandatory. 
 
 (g) Time and place. — The allegations of the time and place of the 
 commission of an offense should be stated as accurately as possible, 
 but where the act or acts charged extend over a considerable period 
 of time it may be necessary to cover such period in the allegation. 
 Thus allegations of " from March to September, 1887," and " from 
 May to October, 1888," have been countenanced in a case in which 
 the accused was charged with the neglect of a duty that required con- 
 tinuous performance. (Digest, p. 486, II, D, 10, b.) So, also, it is 
 proper to allege that an offense was committed while " en route " be- 
 tween certain points. (Digest, p. 486, II, D, 9, b.) So where the 
 exact time or place of the commission of the offense is not known it 
 
38 MANUAL FOR COURTS-MARTIAL. 
 
 is frequently preferable to allege it as having occurred " on or about " 
 a certain date or time, or " at or near " a certain locality, rather than 
 to aver it as committed on a particular day or between two specified 
 days or at a particular place. There is no defined construction to be 
 placed upon the words " on or about " as used in the allegation of 
 time in a specification. The phrase can not be said to cover any 
 precise number of days or latitude in time. It is ordinarily used in 
 military pleading for the purpose of indicating some period, as 
 nearly as can be ascertained and set forth, at or during which the 
 offenses charged are believed to have been committed — in cases where - 
 the exact day can not well be named. And the same is to be said as 
 to the use of the words " at or near " in connection with the averment 
 of place. (Digest, p. 485, II, D, 9, a.) If the specification alleges 
 the offense to have been committed " on " a certain date or " at " a 
 certain place, the court in its findings may, by exceptions and substi- 
 tutions, find another date or place if the evidence supports such 
 amendments, provided the new date or place is sufficiently near the 
 one alleged that an injustice is not done the accused. In preparing 
 several specifications under one charge, the time and place of the 
 alleged offense will be given in each specification. 
 
 (h) Christian name. — The Christian name of an accused should be 
 used in preparing charges, but where there are one or more middle 
 names they may be indicated by the initials only. In the case of a 
 person in the military service the name used in the charges should 
 correspond to that borne by the accused on the muster rolls or the 
 Army register. 
 
 (i) Charging under " alias." — If the accused is known by two 
 names, as where a soldier enlists under a name different from that 
 under which he was known in his prior enlistment, both the heading 
 of the charge and the specification will describe him under his true 
 name and also under his assumed name as an alias. 
 
 (j) General prisoners. — In charging a general prisoner with an 
 offense, the form of the charge will not be changed but the specifica- 
 tion will read as follows: 
 
 In that General Prisoner A B did [here allege the offense in 
 
 the language prescribed when it is committed by an officer or soldier]. 
 
 It is not necessary to allege in the specification that the general 
 prisoner was formerly a soldier, was tried by a general court-martial, 
 and sentenced to dishonorable discharge and a term" of confinement, 
 and that he committed the offense while serving such confinement. 
 The words " general prisoner " necessarily import such facts. 
 
 [Note. — General prisoners are persons sentenced to dismissal or dishonor- 
 able discharge and to terms of confinement at military posts or elsewhere.] 
 
COURTS-MARTIAL PROCEDURE PRIOR TO TRIAL. 39 
 
 (k) Change of rank. — Where the rank of the accused has changed 
 since the commission of an offense, the specification will read as fol- 
 lows: 
 
 In that Private A B , Company ,— . Infantry, then 
 
 sergeant, Company , Infantry, did, etc. 
 
 (I) Written papers and oral statements. — A specification in alleg- 
 ing the violation of an order which has been given in writing, or of 
 any written obligation — as an oath of allegiance, parole, etc. — should 
 preferably set forth the writing verbatim, or at least state fully its 
 substance, and then clearly specify the act or acts which constitute 
 its alleged violation. Oral statements should be alleged in as nearly 
 the exact words as possible, but should always be qualified by the 
 words "or words to that effect," or some similar expression, since 
 proof will generally vary as to some word or words, particularly if 
 some time has elapsed since the incident. A similar rule obtains in 
 cases involving insubordinate or disrespectful language. 
 
 (to) Scandalous and disgraceful offenses. — In framing charges it 
 is permissible, under the custom of the service, after alleging the 
 facts in the specification, to add, " This to the scandal and disgrace 
 of the military service." This form of charge is appropriate in cases 
 of particularly disgraceful conduct occurring in the presence of a 
 number of persons, particularly civilians, or in uniform, or other- 
 wise resulting in publicity. 
 
 (n) Desertion followed by fraudulent enlistment. — Enlistment by 
 a soldier in desertion is fraudulent. Such soldier should be charged 
 with desertion under A. W. 58, and with fraudulent enlistment 
 under A. W. 54. (Cir. 28, War Dept., 1908.) A fraudulent enlist- 
 ment is no defense to a charge of desertion but is proof of such deser- 
 tion, for a soldier can not be excused from repudiating a pending 
 contract by substituting another in its place. In such a case the 
 status of desertion remains, notwithstanding the deserter's presence 
 in the military service under a fraudulent enlistment, until he sur- 
 renders as a deserter or is apprehended as such. For a single deser- 
 tion followed by a fraudulent enlistment, but one specification for 
 desertion will be preferred, in addition to the specification for fraud- 
 ulent enlistment. 
 
 [Note. — A. W. 29 constitutes a rule of evidence and is not a punitive article.] 
 
 (o) Larceny and sale of public property. — In cases of larceny of 
 property (not described in A. W. 94) where the accused has sold the 
 stolen property, the charges should not include specifications alleg- 
 ing the sale except where the same has been made to an innocent 
 party and constitutes such a fraud upon the purchaser as to warrant 
 the preferment of a specification based upon such fraud. Proof of 
 
40 MANUAL FOB COUBTS-MABTTAL. 
 
 a subsequent sale of stolen property goes to show intent to steal, and 5 
 therefore, evidence of such sale should be introduced to support 
 charges of larceny, wherever available. Larceny and sale of United 
 States property in violation of A. W. 94 should each be charged in 
 separate specifications, since that article denounces both offenses. 
 
 (p) Wording of statute to be followed. — Wherever practicable the 
 exact words of the articles of war will be followed. A person under 
 the influence of intoxicating liquor which incapacitates him mentally 
 or physically for the proper performance of duty is " drunk." There- 
 fore, under A. W. 85 the word " drunk " will be used. So in charg- 
 ing other offenses involving drunkenness no other word or phrase 
 will be used as a substitute for "drunk." Under such charges the 
 court should not in its findings substitute such phrases as " under the 
 "influence of intoxicating liquor " and " intoxicated " for " drunk." 
 
 Section II. 
 
 ACTION UPON CHARGES. 
 
 75. Submission of charges. — All charges for trial by court-martial 
 will be prepared in triplicate, using the prescribed charge sheet as a 
 Erst sheet and using such additional sheets of ordinary paper as are 
 required. They will be accompanied — 
 
 (a) Except when trial is to be had by summary court, by a brief 
 statement of the substance of all material testimony expected from 
 each material witness, both those for the prosecution and those for 
 the defense, together with all available and necessary information as 
 to any other actual or probable testimony or evidence in the case ; and 
 
 (5) In the case of a soldier, by properly authenticated evidence of 
 convictions, if any, of an offense or offenses committed by him during 
 his current enlistment and within one year next preceding the date 
 of the alleged commission by him of any offenses set forth in the 
 charges. 
 
 They will be forwarded by the officer preferring them to the officer 
 immediately exercising summary court-martial jurisdiction over the 
 command to which the accused belongs, and will by him and by each 
 superior commander into whose hands they may come either be re- 
 ferred to a court-martial within his jurisdiction for trial, forwarded 
 to -the next superior authority exercising court-martial jurisdiction 
 over the command to which the accused belongs or pertains, or other- 
 wise disposed of as circumstances may appear to require. 
 
 76. Investigation of charges. — If the officer immediately exercising 
 summary court-martial jurisdiction over the command to which the 
 accused belongs or pertains decides to forward the charges to superior 
 authority he will, before so doing, either carefully investigate them 
 
COURTS-MARTIAL — PROCEDURE PRIOR TO TRIAL. 41 
 
 himself or will cause an officer other than the officer preferring the 
 charges to investigate them carefully and to report to him, orally or 
 otherwise, the result of such investigation. The officer investigating 
 the charges will afford to the accused an opportunity to make any 
 statement, offer any evidence, or present any matter in extenuation 
 that he may desire to have considered in connection with the accusa- 
 tion against him. (See par. 225 (&), p. 112.) If the accused de- 
 sires to submit nothing, the indorsement will so state. In his 
 indorsement forwarding the charges to superior authority the com- 
 manding officer will include: 
 
 (a) The name of the officer who investigated the charges; 
 
 (i) The opinion of both such officer and himself as to whether the 
 several charges can be sustained; 
 
 (c) The substance of such material statement, if any, as the ac- 
 cused may have voluntarily made in connection with the case during 
 the investigation thereof; 
 
 (d) A summary of the extenuating circumstances, if any, con- 
 nected with the case; 
 
 (e) His recommendation of action to be taken. 
 
 77. Prompt action required. — No person put in arrest shall be con- 
 tinued in confinement more than eight days, or until such time as a 
 court-martial can be assembled. "When any person is put in arrest 
 for the purpose of trial, except at remote military posts or stations, 
 the officer by whose order he is arrested shall see that a copy of the 
 charges on which he is to be tried is served upon him within eight days 
 after his arrest, and that he is brought to trial within ten days there- 
 after, unless the necessities of the service prevent such trial ; and then 
 he shall be brought to trial within thirty days after the expiration 
 of said ten days. If a copy of the charges be not served, or the ar- 
 rested person be not brought to trial, as herein required, the arrest 
 shall cease. But persons released from arrest, under the provisions 
 of A. W. 70, may be tried whenever the exigencies of the service 
 shall permit, within twelve months after such release from arrest. 
 (A. W. 70.) 
 
 78. Determination of proper trial court — When an officer who exer- 
 cises court-martial jurisdiction receives charges against an enlisted 
 man it is his duty to consider whether they shall be tried by gen- 
 eral, special, or summary court-martial. He should not withhold 
 charges from trial by special or summary court solely for the rea- 
 son that the maximum limit of punishment is beyond the juris- 
 diction of such courts to impose. On the other hand, he should 
 not refer to a special or summary court-martial offenses which by 
 reason of their inherent gravity or of the circumstances surrounding 
 their commission merit greater formality of trial or more condign 
 punishment than is found in the procedure or jurisdiction of such 
 courts. No fixed rule can be laid down and the matter must be de- 
 
42 MANUAL FOB COTJRTS-MAKTIAL. 
 
 cided by the careful consideration of commanders subject to the 
 limitations that while, in a proper case, desertion may be tried be- 
 fore a special court, felonies and crimes involving moral turpitude 
 should not be, and capital crimes can not be tried by special or sum- 
 mary courts-martial. (A. W. 13, 14. For list of capital crimes and 
 offenses see Chap. IV, Sec. III.) 
 
 79. Disposition of copies of charges. — (a) When trial is to be had by 
 summary court the charges will be completed as the record of trial, a 
 copy thereof will be completed as a copy of the summary court record 
 for the company or other commander, and the other copy will, with 
 the least practicable delay after action has been taken on the sentence, 
 be completed and transmitted as the required report of trial to the 
 officer exercising general court-martial jurisdiction over the com- 
 mand, 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. 
 
 (&) When trial is to be had by special or general court-martial the 
 charges and one copy thereof will be referred to the trial judge advo- 
 cate, the copy to be furnished by him to the accused or his counsel, 
 and the other copy will be used for record purposes in the office of the 
 officer appointing the trial court, the top fold of this copy of the 
 charge sheet, in case of trial by general court-martial, being detached 
 at the proper time and forwarded with the record of trial to the 
 Judge Advocate General of the Army. 
 
 80. Service of charges upon accused. — In order that the accused may 
 have sufficient time to prepare for his defense it is provided by A. W. 
 70 that in time of peace no person shall, against his objection, be 
 brought to trial before a general court-martial within a period of 
 five days subsequent to the service of charges upon him. 
 
CHAPTEK VII. 
 COURTS-MARTIAL— ORGANIZATION. 
 
 Page. 
 
 Section I: The members 44 
 
 81. Place of meeting — Duties of members 44 
 
 82. Uniform '. 44 
 
 83. Seating of court 44 
 
 84. Roll call 44 
 
 85. Absence of member 44 
 
 86. Decorum to be observed 45 
 
 87. Control of court over accused 45 
 
 88. Accused not to be tried in irons. 45 
 
 89. Duties of the president 45 
 
 90. Voting 46 
 
 91. Closed sessions 46 
 
 92. Sitting with closed doors. 47 
 
 93. Change in membership 47 
 
 Section II: The judge advocate 47 
 
 94. Selection 47 
 
 95. General duties 48 
 
 96. Duty toward accused 48 
 
 97. Examination of charges 49 
 
 98. Whole truth to be presented 49 
 
 99. Legal adviser of the court 49 
 
 100. Freedom in conducting case 49 
 
 101. Closed sessions 50 
 
 102. Accuser or prosecutor' 50 
 
 103. Expediting trials 50 
 
 104. Weekly reports. ' 50 
 
 105. Detail of orderly 50 
 
 Section III: Assistant judge advocate .• 51 
 
 106. Appointment 51 
 
 107. Duties 51 
 
 Section IV: Counsel 51 
 
 108. Appointment 51 
 
 109. Duty of officer as counsel 52 
 
 110. Bight to interview the accused 52 
 
 111. Witnesses, how questioned during trial 52 
 
 Section V: Reporter 52 
 
 112. Employment 52 
 
 113. Compensation 53 
 
 Decisions (a) to (/) 53 
 
 114. Disposition of vouchers 54 
 
 115. Detail of soldier 54 
 
 116. Time limit for completing record 54 
 
 117. Carbon copies of the record 54 
 
 118. Extra compensation for clerical duties 55 
 
 Section VI: Interpreter 55 
 
 119. Employment and pay 55 
 
 43 
 
44 MANUAL FOR COURTS-MARTIAL. 
 
 Section I. 
 THE MEMBERS. 
 
 81. Place of meeting — Duties of members. — The authority appointing 
 a general or special court-martial designates the place for holding 
 the court, hour of meeting, the members of the court, and the judge 
 advocate. A general or special court-martial assembles at its first 
 session in accordance with the order convening it ; thereafter, accord- 
 ing to adjournment. Courts will be assembled at posts or stations 
 where trial will be attended with the least expense. A member sta- 
 tioned at the place where the court sits is liable to duty with his 
 command during adjournment from day to day. Subject to any in- 
 structions that may be given by the authority that appoints the 
 court, the court will determine the hours of holding its sessions. 
 
 82. Uniform. — For regulations regarding uniform to be worn by 
 members of courts-martial, the judge advocate, the accused, and wit- 
 nesses see Regulations for the Uniform of the United States Army. 
 In any case of doubt (as where the court consists of members but 
 recently mustered into the service), the president of the court will 
 designate the uniform in the notice sent to members notifying them 
 of the place and hour of meeting of the first session. 
 
 83. Seating of court. — When the court is ready to proceed it is called 
 to order by the president. Members will be seated according to 
 rank, alternately to the right and left of the president. The judge 
 advocate, the accused, and his counsel are seated so as to be most 
 easily seen and heard by all the members of the court. The reporter 
 should be seated near the judge advocate. 
 
 84. Roll call. — At the beginning of each session the judge advocate 
 
 verifies the presence or absence of the members of the court by calling 
 
 each officer's name or by informally noting his presence or absence. 
 
 This verification is noted in the record. (See Appendices 6, 7 for 
 
 record of general and special courts-martial.) When the accused 
 
 and his counsel appear before the court for the first time the judge 
 
 advocate will announce their names to the court. 
 
 [Note. — For number necessary to constitute a quorum of a general or special 
 court-martial and the procedure to be taken when the number is reduced below 
 five, see par. 7.] 
 
 85. Absence of member. — A member of a court-martial who knows, 
 or has reason to believe, that he will, for a proper reason, be absent 
 from a session of the court, will inform the judge advocate accord- 
 ingly. When a member of a court-martial is absent from a session 
 thereof, the judge advocate will cause that fact, together with the 
 reason for such absence if known to him, to be shown in the record of 
 proceedings. If the reason for such absence is not known to the judge 
 advocate, he will cause the record to show the member as absent, cause 
 
COURTS-MARTIAL ORGANIZATION. 45 
 
 unknown. In any event, the appointing authority will take such 
 action, if any, relative to such absence as he may deem proper. 
 
 86. Decorum to be observed. — Trials before courts-martial will be 
 conducted with the decorum observed in civil courts. The conduct 
 of members should accordingly be dignified and attentive. Reading 
 of newspapers or other evidence of inattention by members of a 
 court-martial during its sessions constitutes a neglect of duty to the 
 prejudice of good order and military discipline. It is the duty of 
 the president of the court to admonish against such inattention, and 
 charges may be preferred against a member who does not heed the 
 admonition. A court-martial has no power to punish its members, 
 but a member is liable to charges and trial for improper conduct 
 as for any other offense against military discipline. Improper words 
 used by a member should be taken down in writing and any dis- 
 orderly conduct reported to the appointing authority. During the 
 reading of the order appointing the -court and the arraignment the 
 judge advocate, the accused, and his counsel will stand; while the 
 court and the judge advocate are being sworn all persons concerned 
 with the trial, including any spectators present, will stand; when 
 the reporter, an interpreter, or a witness is being sworn he and the 
 judge advocate will stand ; and when the judge advocate, the accused, 
 or his counsel addresses the court, he will rise. (For punishment for 
 contempts, see Chapter X, Sec. I, par. 173.) 
 
 87. Control of court over accused. — A court-martial has no control 
 over the nature of the arrest or other status of restraint of a prisoner 
 except as regards his personal freedom in its presence. For the rela- 
 tion between a court-martial and the accused during trial as regards 
 arrest, see Chapter V, Section I. 
 
 88. Accused not to be tried in irons. — The accused should not be 
 brought before the court in irons, unless there are good reasons to 
 believe that he will attempt to escape or to conduct himself in a 
 violent manner, but the fact that a prisoner has been tried in irons 
 can not in any case affect the validity of the proceedings. 
 
 89. Duties of the president. — A president of the court will not be 
 announced. The officer senior in rank present will act as such. The 
 president does not by virtue of being such exercise command of any 
 kind. He is in no sense the commanding officer of the court, and 
 can not by virtue of being president give an order to a member. As 
 the organ of the court he gives the directions necessary to the regular 
 and proper conduct of the proceedings ; but a failure to comply with 
 a direction given by him, while it may constitute a neglect to the 
 prejudice of good order and military discipline, can not properly 
 be charged as a violation of the sixty-fourth article of war. (Digest, 
 p. 508, VI, G, 3.) Neither the court nor the president is authorized 
 to place the judge advocate in arrest. Only the proper commanding 
 
46 MANUAL FOR COURTS-MARTIAL. 
 
 officer can impose an arrest. It is the duty of the commanding officer 
 to secure the attendance of the accused before the court. (Digest, p. 
 509, VII, C, 2 ; id., VII, C, 3.) The president is the presiding officer 
 of the court, and as such is the organ of the court to maintain order 
 and conduct its business. In addition, he has the duties and privi- 
 leges of other members. He has an equal vote with other members 
 in deciding all questions, including challenges, findings, sentence, ac- 
 quittal, and adjournments. He speaks and acts for the court in 
 every instance where a rule of action has been prescribed by law, 
 regulations, or its own resolution, and has no authority to open or 
 close the court or make a ruling upon the admissibility of evidence, 
 the competency of witnesses, or method of procedure without the 
 acquiescence of the court or by custom of the service. He administers 
 the oath to the judge advocate and authenticates by his signature 
 all acts, orders, and proceedings of the court requiring it. (See 
 Winthrop, p. 249.) It is his duty to take the proper steps to insure 
 prompt trial and disposition of all charges referred for trial and to 
 keep the court advised thereof. 
 
 [Note. — For duty of the president to explain to the accused the effect of a 
 plea of guilty, see Chap. IX, Sec. II, " Pleas to the general issue."] 
 
 90. Voting. — Members of a general or .special court-martial, in 
 giving their votes, shall begin with the junior in rank. (A. W. 31.) 
 In all deliberations, including those on challenges, findings, sentence, 
 acquittal, and adjournments, the law secures the absolute equality 
 of the members, the president having no greater rights in such mat- 
 ters than any other member. A tie vote on the findings is a vote 
 of " not guilty " ; a tie vote on a proposed sentence or on a challenge 
 or any objection or motion is a vote in the negative. The sentence 
 is not adopted and the challenge, objection, or motion is not sustained. 
 When the offense charged includes a minor offense, voting shall 
 fir-st be had upon the major offense. 
 
 All convictions and sentences (other than those involving death), 
 whether by general or special court-martial, may be determined by a 
 majority of the members present. (A. W. 43.) Refusal to vote on 
 any question arising during the proceedings constitutes a neglect to 
 the prejudice of good order and military discipline punishable under 
 A. W. 96. (For voting on findings and sentence, see Chap. XII, 
 Sec. II.) 
 
 91. Closed sessions. — Members take an oath not to disclose or dis- 
 cover the vote or opinion of any particular member of the court- 
 martial. (See A. W. 19.) In order to avoid disclosing or discov : 
 ering such vote or opinion the court is closed while voting upon 
 any question. When the court is closed all persons (including 
 the judge advocate) withdraw. In important cases, where delay 
 would ensue due to the number of spectators present, the court itself 
 may withdraw to another room prepared for the purpose for delib- 
 erating in closed session. It is not necessary, however, for the court 
 to go into closed session in every case requiring action, where such 
 
COURTS-MARTIAL, ORGANIZATION. 47 
 
 action would be unanimous and business can properly be transacted 
 without disclosing the vote or opinion of any member. Thus, on a 
 request by the judge advocate or the accused for a short recess, it is 
 proper for the president to announce " without objection, the request 
 will be granted," or words to that effect. Similarly, if the accused 
 objects to a member because he preferred the charges and is the 
 accuser and the member admits the fact, he may be excused without 
 going into closed session. Care will be taken in such cases that no 
 votes are taken in open session. If any member believes the matter 
 should be passed upon in closed session, it is proper for him to move 
 that the court be closed, whereupon the president will announce that 
 the court will be cleared. 
 
 92. Sitting with closed doors. — A court-martial is authorized, in its 
 discretion, to sit with doors closed to the public. Except, however, 
 when temporarily closed for deliberation, courts-martial in this 
 country are almost invariably open to the public during a trial. But 
 in a particular case where the offenses charged were of a scandalous 
 nature, it was recommended that the court be directed to sit with 
 doors closed to the public. (Digest, p. 516, IX, C.) 
 
 93. Change in membership. — Although it is undesirable to change 
 the membership of a court during a trial it is within the discretion 
 of the appointing officer in r. proper case, to relieve members or ap- 
 point new members. The promotion of a member during the trial 
 of a case does not affect his competency as a member. He should 
 sit according to his changed rank. The rule is that no member who 
 has been absent during the taking of evidence shall thereafter take 
 part in the trial ; but the nonobservance of this rule shall not be con- 
 strued as invalidating the proceedings of courts-martial if no ob- 
 jection is made, and the court permits the member to sit. The rule, 
 however, should be complied with when practicable. Especially 
 should a member who has been absent during an important part of 
 the proceedings not be permitted to resume his seat. Where a mem- 
 ber who has been absent is permitted to resume his seat, or a new 
 member is added after the trial of the case has begun, all proceedings 
 and evidence during his absence should be read over to him in open 
 court before the case proceeds further and the record should show 
 this fact ; but in proceedings in revision the presence of any member 
 who did not vote on the findings and sentence will invalidate the 
 proceedings in revision. 
 
 Section II. 
 THE JUDGE ADVOCATE. 
 
 94. Selection.— The prompt, speedy, and thorough trial of a court- 
 martial case is principally dependent upon the judge advocate. He 
 will, accordingly, be carefully selected. Where it can be avoided, no 
 
48 MANUAL FOB COTJBTS-MARTIAL. 
 
 officer will be detailed as judge advocate of a general court-martial 
 until he has had experience as a member or as an assistant judge 
 advocate of a court. 
 
 95. General duties. — The judge advocate of a general or special 
 court-martial shall prosecute in the name of the United States, and 
 shall, under the direction of the court, prepare the record of its pro- 
 ceedings. (A. W. 17.) Before the court assembles the judge advo- 
 cate will obtain a suitable room for the court, see that it is in order, 
 procure the requisite stationery, summon necessary witnesses, make 
 a preliminary examination of the latter, and, as far as possible, sys- 
 tematize his plans for conducting the case. During the trial he exe- 
 cutes all orders of the court; reads the appointing order and any 
 modifying orders to the accused; swears the members of the court, 
 the reporter, interpreter, and all witnesses; arraigns the accused; 
 examines witnesses ; keeps or superintends, under the direction of the 
 court, the keeping of a complete and accurate record of the proceed- 
 ings; and affixes his signature to each day's proceedings. Whenever 
 the court adjourns to meet at the call of the president, the judge 
 advocate will notify the members of the time designated by the presi- 
 dent for reassembling. In conjunction with the president of the 
 court, he authenticates the record by his signature and, at the end of 
 the trial, transmits the same to the reviewing authority. In case the 
 record can not be authenticated by the judge advocate by reason of 
 his death, disability, or absence, it shall be signed by the president 
 and an assistant judge advocate, if any ; and if there be no assistant 
 judge advocate, or in case of his death, disability, or absence, then 
 by the president and one other member of the court. (A. W. 33.) 
 
 96. Duty toward accused.— Should the accused, for any reason, not 
 be represented by counsel, the judge advocate shall, from time to 
 time throughout the proceedings, advise him of his legal rights. 
 (A. W. 17.) He should— 
 
 (a) Acquaint the prisoner with the accusations against him; 
 (5) Inform him of his right to have counsel ; 
 
 (c) Inform him of his right to testify in his own behalf; and 
 
 (d) Inform him of his right to have a copy of the charges. 
 
 He may ask a prisoner how he intends to plead, but he should in 
 no case try to induce him to plead guilty, or leave him to infer that 
 if he does so his punishment will be lighter. (Winthrpp, p. 293.) 
 When the accused determines to plead guilty the judge advocate 
 should advise him of his right to introduce evidence in explanation 
 of his offense, and should assist him in securing it. During the trial 
 he will see that the accused has full opportunity to interpose such 
 pleas and make such defense as may best bring out the facts, the 
 merits, or the extenuating circumstances of his case. In so far as 
 such action may be taken without prejudice to the rights of the ac- 
 
COURTS-MARTIAL — ORGANIZATION. 49 
 
 cused, any advice given him by the judge advocate should be given 
 or repeated in open court and noted upon the record. 
 
 97. Examination of charges. — The judge advocate will note and 
 report to the convening authority any irregularity in the order con- 
 vening the court and see that the charges are technically and cor- 
 rectly drawn. He may ordinarily correct obvious mistakes of form, 
 or slight errors in names, dates, amounts, etc., but he will not, without 
 the authority of the convening officer, make substantial amendments 
 in the allegations, or — least of all — reject or withdraw a charge or 
 specification or substitute a new and distinct charge for one trans- 
 mitted to him for trial by the proper superior. (Digest, p. 496, 
 IV, B, 1.) It is the duty of the president as well as the judge 
 advocate of every court-martial to examine carefully the indorse- 
 ment on the charges when referred for trial in order that an accused 
 may not be brought to trial before the wrong court. 
 
 98. Whole truth to be presented. — Throughout the trial the judge 
 advocate should do his utmost to present the whole truth of the mat- 
 ter in question. He should oppose every attempt to suppress facts 
 or to distort them, to the end that the evidence may so exhibit the 
 case that the court may render impartial justice. 
 
 99. Legal adviser of the court. — While the court is in open session the 
 judge advocate should respectfully call the attention of the court 
 to any apparent illegalities in its action, and to any apparent irregu- 
 larities in its proceedings. He should act as legal adviser of the 
 court so far as to give his opinion upon any point of law arising 
 during the trial, when it is asked for by the court, but not otherwise. 
 (See, however, par. 197, p. 96.) When his legal advice or assistance 
 is required it will be obtained in open court. In case the accused 
 desires to plead guilty the judge advocate will, whenever necessary, 
 invite the attention of the president of the court to the fact that 
 the effect of such plea must be explained to him. (See Chap. IX, 
 Sec. II, " Pleas to the general issue.") 
 
 100. Freedom in conducting case. — The judge advocate should be left 
 free by the court to introduce his evidence in such order as he sees 
 fit, and in general to bring cases to trial in such order as he deems 
 expedient. (Winthrop, pp. 281-283.) But while it is not the 
 province of the court to direct or control the judge advocate- in his 
 prosecution of the case, it is responsible for the thorough investiga- 
 tion of the case, and need not content itself with the evidence brought 
 out by the prosecution and defense. It is proper for the court as 
 a body or for any member to ask questions of a witness if it is be- 
 lieved the examination already submitted has failed fully to develop 
 the case. Usually such questions are not asked until after the 
 prosecution and defense have fully completed their examination of 
 
 70844°— 16 5* 
 
50 MANUAL FOE COUETS-MABTIAL. 
 
 the witness. The court may direct that the judge advocate recall a 
 witness, secure the attendance of a particular witness, or that he 
 introduce evidence on a particular point. It is the duty of the court 
 to take such action if it believes that thereby the facts in the case 
 will be more clearly presented. 
 
 101. Closed sessions. — Whenever a general or special court-martial 
 shall sit in closed session, the judge advocate and the assistant judge 
 advocate, if any, shall withdraw ; and when their legal advice or their 
 assistance in referring to the recorded evidence is required, it shall 
 be obtained in open court and in the presence of the accused and of 
 his counsel if there be any. (A. W. 30.) If through mistake or 
 inadvertence the judge advocate should be present during the wholo 
 or a part of a closed session of the court, such irregularity is, subject 
 to the provisions of A. W. 37, ground for a disapproval of the pro- 
 ceedings by the reviewing authority, but it does not deprive the court 
 of jurisdiction and courts of the United States do not interfere in 
 such a case to release a prisoner by writ of "habeas corpus. (Ex 
 parte Tucker, 212 Fed. Kep., 569; see also A. W. 37.) 
 
 102. Accuser or prosecutor. — The judge advocate is not challengeable ; 
 but in case of personal interest in the trial or of personal hostility to- 
 ward the accused he should apply to the convening authority to be 
 relieved. 
 
 103. Expediting trials. — Charges to be tried by a general or special 
 court-martial are referred to the judge advocate of the court. It is 
 his duty to bring them to trial promptly. In most cases tried by 
 court-martial the facts are few and simple, and the witnesses are 
 officers or soldiers stationed at the post where the trial is had. 
 Usually the members of the court, judge advocate, and accused and his 
 counsel are stationed at the same post. In such cases the prelimi- 
 nary investigation, reference for trial, and the trial should take place 
 promptly. If the other official duties of the judge advocate and coun- 
 sel do not leave time to prepare cases properly and to bring them to 
 trial promptly the president will advise the commanding officer with 
 a view to their being relieved from other duties. 
 
 104. Weekly reports. — On Saturday of each week each judge advo- 
 cate of a general court-martial will report, through the president of 
 the court and the commanding officer, to the appointing authority, a 
 list of charges on hand, showing the date of receipt of each ; and if 
 any case has been in the hands of the judge advocate for one week or 
 more and the record of trial has not been forwarded to the convening 
 authority, the report will include a statement of the reasons for the 
 delay. No record need be made of this report by the president of the 
 court or the commanding officer. 
 
 105. Detail of orderly. — The commanding officer will detail, when 
 necessary, suitable soldiers as clerks or orderlies to assist the judge 
 
COURTS-MARTIAL — ORGANIZATION. 51 
 
 advocate of a general or special court-martial or military commission, 
 or the recorder of a court of inquiry. 
 
 Section III. 
 ASSISTANT JUDGE ADVOCATE. 
 
 106. Appointment. — The authority appointing a general court- 
 martial shall appoint one or more assistant judge advocates when 
 necessary. (A. W. 11.) An assistant judge advocate of a general 
 court-martial shall be competent to perform any duty devolved by 
 law, regulation, or the custom of the service upon the judge advocate 
 of the court. (A. W. 116.) 
 
 107. Duties. — An assistant judge advocate will perform such duties 
 in connection with the trial as the judge advocate may designate. Or- 
 dinarily he will be expected to relieve the judge advocate of minor 
 details, such as arranging for a place of meeting of the court, sta- 
 tionery, and messenger service, stenographers and interpreters, 
 subpoenaing witnesses, and notifying the court of the place and 
 hour of meeting. During trial he will be expected to see that 
 witnesses are on hand when needed, that all details of procedure are 
 observed and the record accurately kept. He may also be intrusted 
 by the judge advocate with the investigation before trial and proof 
 during trial of any special phase of the charges, or he may, where the 
 judge advocate is otherwise engaged, take charge of the complete 
 trial of a case. (See also A. W. 33.) While the judge advocate and 
 assistant judge advocate will ordinarily be present during trial, if 
 their duties require the presence of either of them elsewhere, he may 
 be excused by the court; but the fact of this withdrawal or absence, 
 the reason therefor, and his return to the court will be noted in the 
 record. (See form for record of a general court-martial, Ap- 
 pendix 6.) 
 
 Wherever in this Manual the judge advocate of a general court- 
 martial is mentioned, the term will be understood to include assistant 
 judge advocates, if any, unless the context shows clearly that a dif- 
 ferent sense is intended. 
 
 Section IV. 
 
 COUNSEL. 
 
 108. Appointment. — The accused shall have the right to be repre- 
 sented before a general or special court-martial by counsel of his own 
 selection, for his defense, if such counsel be reasonably available. (A. 
 W. 17.) Civilian counsel will not, be provided at the expense of the 
 Government. (Digest, p. 506, V, G, 5.) Should the accused request 
 the appointment as his counsel of an officer stationed at the statioa 
 
52 MANUAL FOR COURTS-MARTIAL. 
 
 where the court sits, and such officer be not a member of the court, 
 the commanding officer will appoint such officer as counsel if he is 
 reasonably available. Should the commanding officer decide that 
 the officer desired by the accused is not reasonably available, the ac- 
 cused may appeal to the officer appointing the court, whose decision 
 shall be final. If the counsel desired by the accused is not under the 
 control of the commanding officer where the trial is held, application 
 for counsel will be submitted by the accused in writing to the ap- 
 pointing authority, whose decision as to whether the officer desired 
 is "reasonably available" is final. Officers of the Judge Advocate 
 General's Department are not available for appointment as counsel 
 for the. defense in trials by courts-martial. 
 
 109. Duty of officer as counsel. — An officer acting as counsel before a 
 general or special court-martial should perform such duties as 
 usually devolve upon the counsel for a defendant before civil courts 
 in criminal cases. He should guard the interests of the accused by 
 all honorable and legitimate means known to the law, but should not 
 obstruct the proceedings with frivolous and manifestly useless ob- 
 jections or discussions. 
 
 110. Right to interview the accused. — An accused, even if in close 
 arrest, will be allowed to have such interviews with his counsel, mili- 
 tary or civil, as may be required in order to prepare his defense. 
 Counsel will also be permitted to have interviews with any other 
 person who may be a witness for the accused, or whose knowledge 
 of facts may be useful to the accused in preparing for trial. 
 
 111. Witnesses, how questioned during trial. — If the judge advocate 
 personally prepares the record the counsel will be required to re- 
 duce his questions and arguments to writing; but if the court has a 
 stenographic reporter, the counsel will be allowed to question wit- 
 nesses and address the court orally. 
 
 Section V. 
 REPORTER. 
 
 112. Employment. — Under such regulations as the Secretary of "War 
 may from time to time prescribe, the president of a court-martial 
 or military commission, or a court of inquiry, shall have power to 
 appoint a reporter, who shall record the proceedings of and testi- 
 mony taken before such court or commission and may set down the 
 same, in the first instance, in shorthand. (A. W. 115.) Reporters 
 will be employed only when authorized by the appointing authority. 
 They will not be authorized for special courts-martial, except when 
 the appointing authority directs that the testimony be reduced to 
 writing. 
 
 [Note. — For form of oath for reporter see par. 135.] 
 
COURTS-MARTIAL ORGANIZATION. 53 
 
 113. Compensation — Decisions. — The reporter shall be paid at the 
 following rates of compensation by the Quartermaster Corps on 
 vouchers certified to be correct by the judge advocate or recorder: 
 
 (a) For each case not to exceed $1 an hour for time actually spent 
 in court during the trial or hearing, except when the court or com- 
 mission sits less than three hours during the first day, when the 
 allowance for such day shall be $3. Time will be reckoned to the 
 nearest half of an hour. 
 
 (6) Fifteen cents for each 100 words for transcribing notes and. 
 making that portion of the original record which is typewritten; 
 but no allowance shall be made for the first carbon copy of that 
 portion of the record which is typewritten or -for original papers 
 which are appended as exhibits. 
 
 (e) Ten cents for each 100 words for copying papers material 
 to the inquiry, and 2 cents for each 100 words for each carbon copy 
 of the same, when ordered by the court or commissi on. for its use. 
 
 (d) Two cents for each 100 words for the second and each addi- 
 tional carbon copy of the record when authorized by the convening 
 authority. 
 
 (e) Except for such part of the journey as may be covered by 
 Government transportation, mileage at the rate authorized for a 
 civilian witness not in Government employ and $3 a day for ex- 
 penses when the judge advocate or recorder keeps him, at his own 
 expense, away from his usual place of employment for twenty-four 
 hours or more, on public business referred to the court or commission, 
 shall be allowed the reporter for himself, and, when ordered by the 
 court or commission, for each necessary assistant. 
 
 (/) When a stenographic reporter is authorized for a special 
 court-martial only one copy of the proceedings will be required, and 
 for transcribing notes and making that part of the record of a trial 
 by special court-martial which is typewritten, the reporter, other 
 than an enlisted man, shall receive 13 cents for each 100 words. 
 
 [Note. — The following decisions regarding compensation, of reporters will be 
 observed in preparing vouchers: • 
 
 (a) The payment to a reporter of $3 for each case completed by him is not 
 authorized when more than one case is disposed of in one day, each case re- 
 quiring less than three hours in which to be completed, but simply guarantees 
 the reporter at least $3 for each day that the court or commission sits when 
 a new case is taken up for that day. (Cir. 81, War Dept, 1908.) 
 
 (6) In determining the period for which a reporter is entitled to the allow- 
 ance of $3 a day for expenses when kept away from his usual place of employ- 
 ment time should be counted from the date on which he is required to leave 
 his usual place, of business by the terms of his employment to the date of 
 his return thereto, provided there be no unnecessary delay in the travel to 
 and from the place where the court meets. (Par. 1244, Manual Q. M. Corps, 
 1916.) 
 
 (c) The fact that a -reporter returns each night to his home does not pre- 
 clude the view that he was kept away from his place of business for 24 hours. 
 He is not, however, entitled to mileage for such journeys' unless the sessions 
 of the court are held on nonconsecutive days. (Op. J. A. G., Sept. 7, 191Q,) 
 
54 MANUAL FOR COURTS-MARTIAL. 
 
 (d) A reporter serving two separate courts-martial on the same day is en- 
 titled to have his allowances (except mileage) computed separately for each 
 court. (Op. J. A. G., Oct. 13, 1910.) 
 
 (e) A reporter duly employed, but who, after arrival at court, performs no 
 service, owing to adjournment, is entitled to mileage, $3 for constructive service, 
 and also to the additional $3 if kept away from place of business for 24 hours. 
 (Op. J. A. G., Feb. 18, 1911; June 4, 1914.) 
 
 (/) The abbreviations " Q.," standing for the word question, and "A.," 
 standing for the word answer, and all dates as " 25th " and " 1914 " will each 
 be counted as one word. Punctuation marks will not be counted as a word. 
 It is not necessary for the judge advocate to count the actual number of 
 words on every page to justify him in certifying the account of the reporter. 
 He may ascertain the total number of words by counting the words on a 
 sufficient number of pages to enable him to ascertain a fair average of the 
 number of words On a page and then ascertain the total by multiplying this 
 average by the number of pages. (Op. J. A. G., Oct. 22, 1909; Feb. 8, 1915.)] 
 
 114. Disposition of .vouchers. — The original voucher for payment of 
 the reporter will be properly completed and certified by the judge 
 advocate and will be sent for payment to the nearest disbursing 
 quartermaster. A' carbon copy of the voucher will be forwarded 
 with the record for the information of the appointing authority. 
 
 [Note. — For form of voucher for payment of reporter, see Appendix 18.] 
 
 115. Detail of soldier. — A soldier may be detailed to serve as a steno- 
 graphic reporter for general courts-martial, courts of inquiry, and 
 military commissions, and while so serving shall receive extra pay at 
 the rate of not exceeding five cents for each one hundred words taken 
 in shorthand and transcribed, such extra pay to be met from the 
 annual appropriation for expenses of courts-martial. (Act of Aug. 
 25, 1912, 37 Stat.*, 575.) Such detail will be made only when a 
 reporter is authorized by the appointing authority. 
 
 116. Time limit for completing record. — The judge advocate or 
 recorder shall require the reporter to furnish the typewritten record 
 of the proceedings of each session of the court or commission (together 
 with one carbon copy of the same) not later than twenty-four hours 
 after the adjournment of that session. The complete record will be 
 finished, indexed, bound, and ready for authentication not later than 
 forty-eight hours after the completion of its action by the court or 
 commission on the merits of the case or hearing. 
 
 117. Carbon copies of the record. — Whenever a record of a trial of 
 general court-martial is to be typewritten by a reporter, the judge 
 advocate will inform the accused of his right to demand a copy of 
 the record, and will require of him a statement as to whether or not 
 he desires a copy. If the answer be in the affirmative the judge 
 advocate will cause the reporter to prepare a carbon copy ; this copy 
 will be turned over to the accused, and the judge advocate will note 
 on the index sheet of the record, " Carbon copy of record of trial 
 furnished the accused." (See form for record of general court- 
 martial, Appendix 6.) 
 
 In joint trials a" sufficient number of carbon copies should be 
 prepared to enable one to be furnished each accused if required. 
 
COUKTS-MARTIAIi — ORGANIZATION. 55 
 
 118. Extra compensation for clerical duties. — No person in the mili- 
 tary or civil service of the Government can lawfully receive extra 
 compensation for clerical duties performed for a military court 
 except as provided in paragraph 115, supra. (A. E. 987.) 
 
 Section VI. 
 INTERPRETER. 
 
 119. Employment and pay. — Under such regulations as the Secretary 
 of "War may from time to time prescribe, the president of a court- 
 martial or military commission, or court of inquiry, or a summary 
 court, may appoint an interpreter, who shall interpret for the court 
 or commission. (A. W. 115.) Interpreters may be employed when- 
 ever necessary without application to the appointing authority. 
 They will be allowed the pay and allowances of civilian witnesses, 
 which will be paid by the Quartermaster Corps on vouchers certified 
 by the judge advocate or recorder. ' 
 
 [Note. — For oath of interpreter see par. 136.] 
 
CHAPTEE VIII. 
 COURTS-MARTIAL— ORGANIZATION. 
 
 (Continued.) 
 
 Paga, 
 
 Section I: Challenges 57 
 
 120. Occasion for 57 
 
 121. Grounds for challenge 58 
 
 (a) Principal challenges, (1) to (8).. 58 
 
 (6) Challenges for favor 58 
 
 122. Challenge of new member 58 
 
 123. Challenge by judge advocate 59 
 
 124. Member can not challenge 59 
 
 125. Procedure upon challenges 59 
 
 126. Member disqualified but not challenged 59 
 
 127. Waiver of objection 59 
 
 128. Liberality required 59 
 
 129. Member as accuser or witness for the prosecution. . , 60 
 
 130. Member signing charges — when accuser 60 
 
 131. Member of court as witness 60 
 
 Section II: Oaths 61 
 
 132. Oath of members 61 
 
 (a) Oath, (6) Affirmation, (c) Court sworn for each case, (d) Addi- 
 tional ceremony, (e) Decorum in administering oath 61 
 
 133. at h of judge advocate 62 
 
 134. Oath of witness 62 
 
 (a) Oath, (6) Swearing judge advocate 62 
 
 135. Oath of reporter 62 
 
 136. Oath of interpreter 62 
 
 137. Oath to test competency 62 
 
 138. Oaths for administrative purposes 63 
 
 (a) R. S. 183, (6) A. W. 114 63 
 
 Section III: Continuances ~. 63 
 
 139. Authority for 63 
 
 140. Reason for application to be stated 63 
 
 141. Number of continuances 64 
 
 Section IV: Completion of. organization 64 
 
 142. When accomplished 64 
 
 Section I. 
 CHALLENGES. 
 
 120. Occasion for. — The composition of the court-martial having been 
 made known to the accused by the reading of the appointing order, 
 together with any orders which have operated to modify the compo- 
 
 57 
 
58 MANUAL FOR COURTS-MAETTAL. 
 
 sition of the court as originally constituted, he is asked by the judge 
 advocate whether he objects to being tried by any member present 
 named in the order and modifying orders. If his reply be in the 
 negative, the court and judge advocate are sworn; if, on the other 
 hand, the accused has objection to a member, he exercises his right in 
 this respect by challenging, in turn, each member to whom he objects. 
 Members of a general or special court-martial may be challenged by the 
 accused, but only for cause stated to the court. The court shall deter- 
 mine the relevancy and validity thereof, and shall not receive a chal- 
 lenge to more than one member at a time. (A. W. 18.) Neither a 
 summary court officer nor the judge advocate of a general or special 
 court-martial is subject to challenge. (Digest, p. 502, IV, N; Davis, 
 p. 85, n, 3.) 
 
 [Note. — The various classes of challenges recognized at common law have 
 been practically reduced in courts-martial practice to two, viz, (1) principal 
 challenges, or those where the member must be excused upon proof of the 
 ground for challenges as alleged; (2) for favor, where the court must decide 
 whether the facts proved constitute cause to excuse the member.] 
 
 121. Grounds for challenge — (a) Principal challenges. — In the follow- 
 ing cases a member will be excused when challenged upon proof of 
 the fact as alleged : 
 
 (1) That he sat as a member of a court of inquiry which investi- 
 gated the charges. 
 
 (2) That he has personally investigated the charges and expressed 
 an opinion thereon, or that he has formed a positive and definite 
 opinion as to the guilt or innocence of the accused. 
 
 (3) That he is the accuser. 
 
 (4) That he will be a witness for the prosecution. 
 
 (5) That (upon a rehearing of the case) he sat as a member on the 
 former trial. 
 
 (6) That, in the case of the trial of an officer, the member will be 
 promoted by the dismissal of the accused. 
 
 (7) That he is related by blood or marriage to the accused. 
 
 (8) That he has a declared enmity against the accused. 
 
 (b) Challenges for favor. — Where prejudice, hostility, bias, or inti- 
 mate personal friendship are alleged it is for the court, after hearing 
 the grounds for challenging stated and the reply, if any, of the chal- 
 lenged member, as well as any other evidence presented, to determine 
 whether the grounds stated and proved or admitted are sufficient in 
 fact to disqualify a challenged member. 
 
 122. Challenge of new member. — Where new members join or are 
 added to the court after its organization the order detailing such new 
 members should be read to the accused and he should be given full 
 opportunity to challenge. The record will show affirmatively that the 
 right has been aecorded the accused to challenge every member of the 
 court. 
 
COURTS-MARTIAL — ORGANIZATION. 59 
 
 123. Challenge by judge advocate. — There is no statutory authority 
 for a challenge by the judge advocate, but under the custom of the 
 service after the accused has fully exercised his right of challenge 
 the judge advocate may also challenge for cause in the same manner 
 as the accused. (Digest, p. 502, IV, O.) 
 
 124. Member can not challenge. — There is no authority of law or cus- 
 tom of the service for a member of a court-martial to challenge 
 another member, but where one member has knowledge of the fact 
 that another is the accuser in the case or will be a witness for the 
 prosecution he will bring the fact to the attention of the court in 
 order that proper action may be taken. (See par. 12&, below.) 
 
 125. Procedure upon challenges. — A positive declaration by a member 
 challenged on the ground of prejudice or interest that he is not 
 prejudiced against the accused nor interested in the case is ordi- 
 narily satisfactory to the accused, and, in the absence of material 
 evidence in support of the objection, will justify the court in over- 
 ruling it. If, however, the statement is unsatisfactory, or the mem- 
 ber makes no response, the accused may offer testimony in support 
 of his challenge or may subject the challenged member to an exami- 
 nation under oath as to his competency as a member. In such a case 
 the judge advocate administers the oath to the challenged member. 
 The accused and other witnesses may be cross-examined, witnesses 
 may be introduced in rebuttal by the judge advocate and arguments 
 may be made. The whole proceedings, will, in the case of a general 
 court-martial, appear in the record. During the deliberation of the 
 court the challenged member will withdraw. If but four mem- 
 bers remain they may pass upon the challenge. ( See Chap. II, Sec. II. ) 
 
 [Note. — For form of oath to be administered to a challenged member see 
 par. 137.] 
 
 126. Member disqualified but not challenged. — In the absence of a chal- 
 lenge the court of itself can not excuse a member from sitting on 
 the trial of a case, but a member not challenged, who thinks himself 
 disqualified for reasons other than those indicated in paragraph 129, 
 below, may announce in open court his supposed disqualification, in 
 order that he may be' challenged ; or he may apply to the appoint- 
 ing authority to be relieved. 
 
 127. Waiver of objection. — The rule is that challenges should be made 
 before the arraignment, ' and if an objection to the comptency of a 
 member was known at that time and not made, it will be considered 
 as waived; but if the cause of a member's incompetency was not 
 known at the time of arraignment or did not arise until later," the 
 court will entertain a challenge based on such cause, at any stage 
 of the proceedings. 
 
 128. Liberality required. — Courts should be liberal in passing upon 
 challenges, but they will not entertain an objection that is not spe- 
 
60 MANUAL FOE COURTS-MABTIAL. 
 
 cific, and they should be reluctant to sustain one upon the mere 
 assertion of the accused, except where it is admitted by the chal- 
 lenged member. 
 
 129. Member as accuser or witness for the prosecution. — No officer shall 
 be eligible to sit as a member of a general or special court-martial 
 when he is the accuser or a witness for the prosecution. (A. W. 
 8, 9.) After the accused is brought before the court, preferably 
 before the court is sworn^ any member thereof who is or believes 
 himself to be the accuser in the case will formally announce that 
 fact to the court, whereupon he will be excused. When the accused, 
 his counsel, the judge -advocate, or any member of the court, at any 
 time before the finding, shall have reason to believe that any member 
 thereof is the accuser in the case, or may be called as a witness for 
 the prosecution, such belief shall be communicated to the court, and, 
 if the court, after hearing the facts, find that such member is the 
 accuser or is to be called as a witness for the prosecution, he shall 
 be excused. If at any stage of the proceedings prior to the findings 
 any member of the court be called as a witness for the prosecution, 
 he shall, before qualifying as a witness, be excused from further 
 duty as a member. 
 
 130. Member signing charges — When accuser. — Whether or not an 
 officer is the accuser in a particular case is a question of fact. If, 
 notwithstanding his ineligibility, he does sit as a member of a gen- 
 eral or special court-martial, the proceedings are necessarily invalid. 
 (A. W. 8, 9; Op. J. A. G., Oct. 11, 1913; id., Nov. 13,. 1913, Bull. 
 38, War Dept., 1913, p. 6.) An officer may be ordered by superior 
 authority to prefer and sign a charge. The action of the officer 
 preferring and signing the charge may be purely ministerial and 
 represent no conviction whatever on his part that an offense has been 
 committed, or that if an offense has been committed it was committed 
 by the person charged. In such a case the accuser is not, in fact, the 
 officer signing the charge, but .the officer who directs the preparation 
 and signing of the charge. The former is, therefore, not within the 
 prohibition of the statute. The officer who has signed the charge in 
 a particular case is, however, prima facie, the accuser in that case, 
 and therefore ineligible to sit as a member of the trial court. (Op. 
 J. A. G., Feb. 20, 1914, Bull. 8, War Dept., 1914, p. 6.) If in such a case 
 the court should decide that he is eligible, all' the evidence upon which 
 the court reached its decision will, in the case of a general court- 
 martial, be made of record, and in the case of a special court-martial 
 the record will show that evidence touching the eligibility of the 
 officer was heard by the court and the finding arrived at thereon. 
 
 131. Member of court as witness. — (a) For the prosecution. — No 
 officer shall be eligible to sit as a member of a general or a special 
 court-martial who is a witness for the prosecution. (A. W. 8, 9; 
 
COUETS-MAKTIAL ORGANIZATION. 6 1 
 
 Bull. 38, War Dept., 1913, p. 6.) In any case where the proceedings 
 of a court are invalidated by reason of the failure to excuse a mem- 
 ber who is the accuser or a witness for the proseqution a new trial 
 may be ordered. (Bull. 8, War Dept., 1914, p. 8.) 
 
 (b) For the defense. — The fact that a member is a witness for the 
 defense will not necessarily disqualify him to sit as a member of the 
 court, and the fact that such a witness sits throughout the trial as a 
 member of the court will not in any way affect the validity of its 
 proceedings. 
 
 (c) When catted by court. — Whether a member called as a witness 
 by the court is to be considered as a witness for the prosecution de- 
 pends on the character of his testimony, which should be carefully 
 considered before a conclusion is reached that he is not. In any case 
 of doubt he should be excused from further participation in the trial 
 as a member. (Op. J. A. G., Nov. 20, 1913.) 
 
 (d) When accused pleads guilty. — When a member is a witness to 
 any charge or specification to which the accused pleads guilty and 
 he is not called as a witness for the prosecution to any other charge 
 or specification, he is not disqualified from sitting as a member. (Op. 
 J. A. G., Nov. 19, 1914, Bull. 52, War Dept., 1914, p. 3.) 
 
 Section II. 
 
 OATHS. 
 
 132. Oath of members. — (a) The challenges having been disposed of , 
 the judge advocate of a general or special court-martial shall ad- 
 minister to the members of the court, before they proceed upon any 
 trial, the following oath or affirmation (A. W. 19) : 
 
 You, A. B., do swear (or affirm) that you will well and truly try and 
 determine, according to the evidence, the matter now before you, between 
 the United States of America and the person to he tried, and that you will 
 duly administer justice, without partiality, favor, or affection, according to 
 the provisions of the rules and articles for the government of the Armies 
 of the United States, and if any doubt should arise, not explained by said 
 articles, then according to your conscience, the best of your understanding, 
 and the custom of war in like cases; and you do further swear (or affirm) 
 that you will not divulge the findings or sentence of the court until they 
 shall be published by the proper authority, except to the judge advocate and 
 assistant judge advocate; neither will you disclose or discover the vote or 
 opinion of any particular member of the court-martial, unless required to 
 give evidence thereof as a witness by a court of justice in due course of 
 law. So help you God. 
 
 (b) In case of affirmation the closing sentence of adjuration will 
 be omitted. 
 
 (c) When more than one case is tried by the same court, the oath 
 must be administered anew for each case. 
 
62 MANUAL FOB COURTS-MARTIAL. 
 
 (d) The oaths or affirmations prescribed in A. W. 19 for the 
 members, the judge advocate, a witness, and others will always be 
 administered, but in addition there may be such additional ceremony 
 or acts as will make the oath or affirmation binding on the conscience 
 of the person taking it. 
 
 (e) For decorum to be observed during the administration of 
 oaths, see Chapter VII, Section I. 
 
 133. Oath of judge advocate. — When the oath or affirmation has been 
 administered to the members of a general or special court-martial, 
 the president of the court shall administer to the judge advocate 
 and to each assistant judge advocate, if any, an oath or affirmation 
 in the following form (A. W. 19) : 
 
 You, A. B., do swear (or affirm) that you will not divulge the findings or 
 sentence of the court to any but the proper authority until they shall be 
 duly disclosed by the same. So help you God. 
 
 134. Oath of witness. — (a) All persons who give evidence before a 
 court-martial shall be examined on oath or affirmation in the follow- 
 ing form (A. W. 19), administered by the judge advocate: 
 
 You swear (or affirm) that the evidence you shall give in the case now in 
 hearing shall be the truth, the whole truth, and nothing but the truth. So 
 help you God. 
 
 (b) If either the judge advocate or assistant judge advocate is to 
 testify, the oath or affirmation will be administered by the other or 
 by the president. 
 
 135. Oath of reporter. — (a) Every reporter of the proceedings of a 
 court-martial shall, before entering upon his duties, make oath or 
 affirmation in the following form (A. W. 19), administered by the 
 judge advocate : 
 
 You swear (or affirm) that you will faithfully perform the duties of reporter 
 to this court. So help you God. 
 
 (b) For authority for hiring reporters, and compensation, see 
 Chapter VII, Section V. 
 
 136. Oath of interpreter. — Every interpreter in the trial of any case 
 before a court-martial shall, before entering upon his duties, make 
 oath or affirmation in the following form (A. W. 19), administered 
 by the judge advocate : 
 
 You swear (or affirm) that you will truly interpret in the case now in 
 hearing. So help you God. 
 
 137. Oath to test competency. — When a member of a general or special 
 court-martial is challenged and it is desired to question him regard- 
 ing his eligibility to sit as a member in the trial of a case, the judge 
 advocate will administer to him the following oath : 
 
 You swear that you will true answers make to questions touching your 
 competency as a member of the court in this case. So help you God. 
 
COURTS-MARTIAL — ORGANIZATION. 63 
 
 138. Oaths for administrative purposes. — (a) Any officer or clerk of 
 any of the departments lawfully detailed to investigate frauds on, 
 or attempts to defraud, the Government, or any irregularity or mis- 
 conduct of any officer or agent of the United States, and any officer 
 of the Army, Navy, Marine Corps, or Revenue-Cutter Service de- 
 tailed to conduct an investigation, and the recorder, and if there be 
 none the presiding officer, of any military, naval, or Revenue- Cutter 
 Service board appointed for such purpose, shall have authority to 
 administer an oath to any witness attending to testify or depose in 
 the course of such investigation. (R. S. 183, as amended by the 
 act of Feb. 13, 1911, 36 Stat., 898.) 
 
 (6) Any judge advocate or acting judge advocate, the president 
 of a general or special court-martial, any summary court-martial, the 
 judge advocate or any assistant judge advocate of a general or spe- 
 cial court-martial, the president or the recorder of a court of inquiry 
 or of a military board, any officer designated to take a deposition, any 
 officer detailed to conduct an investigation, and the adjutant of any 
 command shall have power to administer oaths for the purposes of 
 the administration of military justice and for other purposes of mili- 
 tary administration ; and in foreign places where the Army may be 
 serving shall have the general powers of a notary public or of a 
 consul of the United States in the administration of oaths, the execu- 
 tion and acknowledgment of legal instruments, the attestation of 
 documents, and all other forms of notarial acts to be executed by 
 persons subject to military law. (A. W- 114.) 
 
 Section III. 
 
 CONTINUANCES. 
 
 139. Authority for. — A court-martial may, for reasonable cause, grant 
 a continuance to either party for such time and as often as may 
 appear to be just. (A. W. 20.) If before the first meeting of the 
 court a "continuance is deemed necessary by either party, application 
 therefor should be made to the appointing authority, but if made 
 .after assembling the application will be made to the court. When 
 
 application is made to the court for an extended delay which appears 
 to be well founded, it may be referred to the appointing authority 
 in order that he may determine whether the court should grant it 
 or whether he should dissolve the court. 
 
 140. Reason for application to be stated. — The party desiring a con- 
 tinuance must state the reasons upon which his application is based. 
 When it is desired because of the absence of a witness he should dis- 
 tinctly show that the witness is material, that he has used due dili- 
 gence to procure the testimony or attendance of the witness, and that 
 he has reasonable ground to believe that he will be able to procure 
 
64 MANUAL FOE COURTS-MARTIAL. 
 
 such testimony or attendance within a reasonable time, which time 
 shall be stated. 
 
 141. Number of continuances. — The number of continuances which 
 may be granted is not limited, but where extended delays will ensue 
 the court will be justified in exacting proof of due diligence en the 
 part of the party requesting the same, and may even require the rea- 
 sons to be stated under oath if it has reason to suspect that the in- 
 tention is merely to delay the proceedings. 
 
 Section IV. 
 
 COMPLETION OF ORGANIZATION. 
 
 142. When accomplished. — The court having met, the accused and his 
 counsel having been introduced, the reporter sworn, the convening 
 order read, the right of challenge accorded, and the court and judge 
 advocate sworn, the organization of the court is complete for the 
 trial of the case. 
 
CHAPTER IX. 
 COURTS-MARTIAL— PROCEDURE DURING TRIAL. 
 
 .Section I : Arraignment 65 
 
 143. When made 65 
 
 144. Procedure , 66 
 
 Section II: Pleas 66 
 
 145. Kinds of pleas. .' 66 
 
 (a) To the jurisdiction; (6) in abatement; (c) in bar of trial; (d) to 
 
 the general issue 66 
 
 146. Plea to the jurisdiction 66 
 
 Grounds for, enumerated, (a) to (dj 66 
 
 147. Plea in abatement 67 
 
 148. Plea in bar of trial 67 
 
 149. Statute of limitations 67 
 
 1. Definition 67 
 
 2. Limitations as to time, (o) to (d) 67 
 
 3. Limitation as to number of trials, (a) to (h) 68 
 
 150. Pardon 70 
 
 151". Constructive condonation 70 
 
 152. Inadmissible special pleas 70 
 
 (a) Former punishment .- 70 
 
 (6) Illegal enlistment 70 
 
 (c) Release from arrest 70 
 
 (d) Other forms of inadmissible pleas 71 
 
 153. Action upon special pleas 71 
 
 Procedure, (a) to (d) 71 
 
 154. Pleas to the general issue 72 
 
 Discussed, (a) to (</) 72 
 
 Section III: Refusal to plead 73 
 
 155. Action 73 
 
 Section IV: Motions , 74 
 
 156. Motion to sever 74 
 
 157. Motion to elect 74 
 
 158. Nolle prosequi 74 
 
 Section I. 
 
 ARRAIGNMENT. 
 
 143. When made. — On the swearing in of the members and the judge 
 advocate, the organization of the court is complete for the trial of 
 the charges in the case then before the court. In each case tried by 
 the court the appointing order must be read anew, a new opportunity 
 
 70844°— 10 6* 65 
 
66 MANUAL FOE COURTS-MARTIAL. 
 
 to challenge must be given, and the members, judge advocate, re- 
 porter, and interpreter must be sworn anew. In each case the pro- 
 ceedings must be complete without reference to any other case. 
 
 144. Procedure. — The court being organized, and both parties ready to 
 proceed, the judge advocate will read the charges and specifications, 
 separately and in order, to the accused and ask him how he pleads 
 to each. The order pursued, in case of several charges or specifica- 
 tions, will be to arraign on the first, second, etc., specifications to the 
 first charge, then on the first charge, and so on with the rest. The 
 reading of the charges and specifications and the pleas of the accused 
 in answer thereto constitute the arraignment of the accused. In 
 reading the charges the judge advocate will also read the name and 
 rank of the ofiicer preferring them. 
 
 {For decorum to be observed during the arraignment see par. 86.] 
 
 Section II. 
 PLEAS. 
 
 145. Kinds of pleas. — In court-martial procedure the usual pleas are 
 the following: (a) Pleas to the jurisdiction; (b) pleas in abate- 
 ment; (c) pleas in bar of trial; and (d) pleas to the general issue. 
 The first three mentioned are also known as special pleas. These 
 pleas should be made in the order named. (Dudley, p. 93 ; Bouvier's 
 Law Dictionary," Rawle, 3d Rev., p. 2603.) 
 
 146. Plea to the jurisdiction. — A plea to the jurisdiction denies the 
 right of the court to try the case. The following are grounds for a 
 plea to the jurisdiction of a court: 
 
 (a) That it was appointed by an officer who did not have the legal 
 authority to do so (see Chap. Ill, Courts-martial — By whom ap- 
 pointed) ; 
 
 (5) That it is composed wholly or in part of members not author- 
 ized by law to sit upon such court-martial (see Chap. II, Courts- 
 martial — Composition) ; 
 
 (c) That the accused is not subject to its jurisdiction (see Chap. 
 I, Persons subject to military law) ; or 
 
 (d) That it has not legal power to try the offense charged (see 
 Chap. XVII, Punitive articles). 
 
 A plea to the jurisdiction, if well grounded and sustained by the 
 court, bars further prosecution before the court. If well grounded 
 and not sustained by the court, the proceedings may be disapproved 
 by the appointing authority, or, even though approved, may be 
 reviewed on writ of habeas corpus by a United States court, which 
 will cause the proceedings to be set aside as illegal and void. Waiver 
 of objection will never avail to confer jurisdiction upon a court not 
 
COURTS-MARTIAL PEOCEDTJBE DURING TRIAL. 67 
 
 legally possessing it, even though the accused fails to submit a plea 
 to the jurisdiction at the proper time. 
 
 147. Plea in abatement. — A plea in abatement is based upon some 
 defect in the charge or specification and is one that operates merely 
 to delay the trial, such as an error in the name, rank, op organization 
 of the accused or in the allegation as to time and place in the specifi- 
 cation. An accused who submits a plea in abatement must show 
 how the error may be amended. When a plea in abatment is 
 sustained, the judge advocate will correct the charge and specifica- 
 tion objected to so as to meet the objection, and the trial will proceed 
 on the corrected charges. To enable him to make the correction a 
 continuance may be granted. Matters which might have been ob- 
 jected to by a plea in abatement will be considered as waived by 
 pleading to the general issue. 
 
 148. Plea in bar of trial. — A plea in bar of trial, if sustained, is a sub- 
 stantial and conclusive answer to the charge or specification to which 
 it is addressed. Such a plea may be made on the grounds set forth in 
 pars. 149, 150, and 151. 
 
 149. The statute of limitations. — (1) Definition. — Statutes of limita- 
 tion in criminal law are statutes of which the accused may take 
 advantage and deprive the Government of the power to try and 
 punish him after the lapse of a specific period since the offense was 
 committed. They are enacted to secure the prompt punishment of 
 criminal offenses and with a view to obtain the attendance of the 
 witnesses at the trial while the recollection of the event is still fresh 
 in their minds. In court-martial practice prosecutions are limited 
 both as to time and as to number. (A. W. 39, 40.) 
 
 (2) Limitations as to time. — (a) In the following cases there is no 
 limitation as to time upon trial by court-martial (A. W. 39) viz: 
 
 (1) Desertion committed in time of war; 
 
 (2) Mutiny; or 
 
 (3) Murder. 
 
 (b) The period of limitation upon trial and punishment by court- 
 martial shall be three (3) years in the following cases (A. W. 39) 
 viz.: 
 
 (1) Desertion in time of peace; 
 
 (2) Any crime or offense punishable under A. W. 93 ; or 
 
 (3) Any crime or offense punishable under A. W. 94. 
 
 (c) No person subject to military law shall be liable to be tried 
 or punished by a court-martial for any crime or offense not enumer- 
 ated in paragraph (a) or paragraph (b) , supra, committed more than 
 two (2) years before the arraignment of such person (A. W. 39). 
 
 '(d) Computation of the period of limitation. — The point at and 
 from which the period of limitation is to begin to run is the date of 
 
68 MANUAL FOR COUKTS-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 ofCense barred by the provisions of law existing at 
 the date of its enactment, August 29, 1916.] 
 
 (3) Limitation as to number of trials. — (a) No person .shall be 
 tried a second time for the same offense. (A. W. 40.) 
 
 (5) 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 
 (he same offense, or for any included offense and it is immaterial 
 whether the conviction or acquittal has been approved or disap- 
 proved. 
 
 (c) 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 competent 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 
 
COURTS-MARTIAL PROCEDURE DURING 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) Release from arrest. — Release from arrest upon the charges and 
 restoration to duty before trial — already noticed as not a ground for 
 a plea of pardon or condonation (except in case of a deserter restored 
 
COURTS-MARTIAL — PROCEDURE DURING TRIAL. 71 
 
 to duty without trial) — is, similarly, no ground for a special plea in 
 bar of trial. (Idem, p. 412.) 
 
 (d) Other forms of inadmissible pleas. — Such objections (which'have 
 been taken in some cases) as that the accused, at the time of the 
 arraignment, is undergoing a sentence of general court-martial, or 
 that, owing to the long delay in bringing him to trial, 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. §o, 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.) 
 
 153. Action upon special pleas. — (a) Each special plea should be 
 stated briefly and clearly. It must also be supported by evidence 
 or legal argument to show that it is well taken. The burden of sup- 
 porting a special plea by a preponderance of proof rests on the 
 accused. Both sides should be heard and the proceedings and argu- 
 ments under the plea in trial by general or special court-martial 
 recorded. The accused may make several special pleas to any charge 
 or specification, 
 
 (b) When a special plea to the jurisdiction or in bar of trial 
 as to all the charges and specifications has been sustained by a court, 
 the record of the proceedings as far as had will be forwarded to the 
 reviewing authority with a statement of reasons which, in the 
 opinion of the court, sustain its action. If the reviewing authority 
 is in disagreement with the court in respect of the validity of the 
 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 FOE 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. 
 
 (b) 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. 
 
 (c) 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 mandatory, 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 
 
COUKTS-MABTIAL — PKOCEDUBE DURING 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 plea, the 
 statement and plea will be considered together, and if guilt is not 
 conclusively admitted the court will direct the entry of a plea of 
 " not guilty " and proceed to try the case on the general issue thus 
 made. The most frequent instances of inconsistency are in cases 
 involving a specific intent, as in desertion, larceny, etc. In such 
 cases, where after a plea of guilty the accused makes a statement, 
 the latter should be carefully scrutinized by the court, and if in 
 the case of desertion in any part there is a statement that the ac- 
 cused had no intention of remaining away, that he expected to re- 
 turn when he had earned some money, or that when arrested he was 
 on his way back to his organization, etc. ; or, in the case of larceny, 
 that he intended to return the property alleged to have been stolen, 
 etc., the court should direct the entry of a plea of " not guilty," but 
 the criminality of an intent once formed is not affected by a subse- 
 quent change of intent. 
 
 (/) A plea of " guilty without criminality " is irregular and con- 
 tradictory. (Winthrop, p. 414.) It is practically equivalent to a 
 plea of " not guilty " and the court and judge advocate should pro- 
 ceed as if that plea were entered. Unless a plea of guilty is unquali- 
 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 (g) , supra. 
 
74 MASTTJAL FOE COTJRTS-MAKTIAL. 
 
 Section IV. 
 MOTIONS. 
 
 156. Motifln to sever. — A motion to sever is a motion by one of two 
 or more joint accused to be tried separately from the other or others, 
 It will regularly be made at the 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 coaceused, 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 
 
 (<s) 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-MARTIAL— 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: Tags. 
 
 159. Process to obtaii. 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. 85 
 
 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-MAETIAL. 
 
 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 him 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.) 
 
 [Note. — 1. For power to issue process to secure the attendance and testimony 
 of witnesses before courts-martial in the National Guard, not in the service of 
 the United States, see 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 summon 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 FOE COTJBTS-MAETTAL. 
 
 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 Avill 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. IV, 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, 
 
COURTS-MARTIAL — 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 
 70844°— 16 7* 
 
82 MANUAL 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 tbat 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 military 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 (b) refuses to qualify as a witness, 
 or to testify, or (c) produce documentary evidence which such person 
 may have been legally subpoenaed to produce, shall be deemed 
 guilty of a misdemeanor, for which such person shall be punished on 
 information in the district court of the United States, or in a court of 
 original criminal jurisdiction in any of the Territorial possessions of 
 the United States, jurisdiction being hereby conferred upon such 
 courts for such purpose ; and it shall be the duty of the United States 
 district attorney or the officer prosecuting for the Government in any 
 such court of original criminal jurisdiction, on the certification of the 
 facts to him by the military court, commission, court of inquiry, or 
 board, to file an information against and prosecute the person so 
 offending, and the punishment of such person, on conviction, shall be 
 a fine of not more than $500, or imprisonment not to exceed six 
 months, or both, at the discretion of the court: Provided, That the 
 fees of such witness and his mileage, at the rates allowed to witnesses 
 attending the courts of the United States, shall be duly paid or 
 tendered said witness, such amounts to be paid out of the appropria- 
 tion for the compensation of witnesses. (A. W. 23.) 
 
 [Note. — If an officer who is charged with serving a subpoena pays the neces- 
 sary fees and mileage to a witness, taking a receipt therefor, he is entitled to 
 reimbursement. (Dec. Comp. Treas., Sept. 10, 1901, published in Cir. 38, 
 A. G. O., 1901.)] 
 
COURTS-MARTIAL WITNESSES AND DEPOSITIONS. 83 
 
 171. Same in Philippine Islands. — Every person not belonging to the 
 Army of the United States, who, in the Philippine Islands, being 
 duly subpoenaed to appear therein as a witness before a general court- 
 martial of said Army (or naval court), willfully neglects or refuses 
 to appear, or refuses to qualify as a witness, or to testify, or produce 
 documentary evidence, which such person may have been legally sub- 
 poenaed to produce, shall be punished by a fine of not more than 
 $500, United States currency, or imprisonment not to exceed six 
 months, or both, at ihe discretion of the court, and it shall be the 
 duty of the proper fiscal or prosecuting officer, on the certification 
 of the facts to him by the general court-martial, to file in the proper 
 court a complaint against and prosecute the person so offending: 
 Provided, That $1.50, United States currency, for each day's attend- 
 ance, and 5 cents, United States currency, per mile for going from 
 his residence to the place of trial or hearing, and 5 cents per mile 
 for returning, shall be duly tendered to said witness: Provided 
 further, That no witness shall be compelled to incriminate himself 
 or to answer any question which may tend to incriminate him. (Acts 
 1130 and 1243, P. I. Commission.) The provisions of this paragraph 
 do not* apply to witnesses before special and summary courts. 
 
 [Note. — Employees of the civil government of the Philippine Islands, paid 
 from insular funds of the islands, are held not to be in the employ of the 
 United States. (Dec. Comp. Treas., Aug. 20, 1902, published in Cir. 45, A. G. O., 
 1902.)] 
 
 172. Tender of fees preliminary to prosecution. — In case a civilian wit- 
 ness is duly subpoenaed under the authority of A. W. 22 and willfully 
 neglects or refuses to appear or refuses to qualify as a witness, or to 
 testify or produce documentary evidence which he may have been 
 legally subpoenaed to produce, he will at once be tendered or paid 
 by the nearest quartermaster one day's fees and mileage for the 
 journeys to and from the court, and will thereupon be again called 
 upon to comply with the requirements of the law. Upon failing the 
 second time to comply with the requirements of the law a complete 
 report of the case will be made to the officer exercising general court- 
 martial jurisdiction over the command with a view to presenting the 
 facts to the Department of Justice for the punitive action contem- 
 plated in A. W. 23. 
 
 173. Contempts — (a) Authority to punish. — A court-martial may 
 punish, at discretion, subject to the limitations contained in A. W. 14, 
 any person who uses any menacing words, signs, or gestures in its 
 presence, or who disturbs its proceedings by any riot or disorder. 
 (A. W. 32.) The power to so punish is vested in general, special, 
 and summary courts-martial. Punishments adjudged for contempt, 
 like other punishments adjudged by courts-martial, require the 
 approval of the reviewing authority in order to be effective. 
 
84 MANUAL FOR COUETS-MAETIAL. 
 
 (b) Persons who may be punished for contempt. — The words "any 
 person," as used in A. W. 32, appear to include civilians as well as 
 military persons. In view, however, of the embarrassment liable to 
 attend the execution, through military machinery, of a punishment 
 adjudged against a civilian for a contempt under the article, it 
 would generally be advisable for the court to confine itself to causing 
 the party to be removed as a disorderly person, and, in an aggra- 
 vated instance, to procure a complaint to be lodged against him for 
 breach of the public peace. (Winthrop, p. 462.) 
 
 (c) Direct and constructive contempts. — A direct contempt is one 
 committed in the presence or immediate proximity of a court while 
 it is in session. An indirect or constructive contempt is one not so 
 committed. The conduct described in A. W. 32 constitutes direct con- 
 tempt. But conduct on the part of a person subject to military law 
 and amounting to a constructive contempt may be punished like any 
 other conduct that is prejudicial to good order and military discipline, 
 by bringing the person to trial before another court on charges under 
 A. W. 96. 
 
 (d) Procedure. — Where a contempt within the description of A. W. 
 32 has been committed and the court deems it proper that the offender 
 shall be punished, the proper course is to suspend the regular busi- 
 ness and, after giving the party an opportunity to be heard in ex- 
 planation, to proceed, if the explanation is insufficient, to impose a 
 punishment, resuming thereupon the original proceedings. The 
 action taken is properly summary, a formal trial not being called for. 
 Close confinement in quarters or in the guardhouse during trial of 
 the pending case or forfeiture of a reasonable amount of pay, has 
 been the more usual punishment. A full record of the proceeding 
 is at once made, not separate from, but in and as a part of the regular 
 record of the case on trial, showing the occasion and circumstances 
 of the contempt, the words or acts which constituted it, the excuse 
 or statement, if any, of the party, the action taken by the court, its 
 judgment and the disposition of the offender. (Winthrop, p. 469.) 
 Instead of proceeding against a military person for contempt in the 
 manner contemplated by this article, the alternative course may be 
 pursued of bringing him to trial before a new court on a charge of a 
 disorder under A. W. 96. 
 
 Section II. 
 
 DEPOSITIONS. 
 
 174. When admissible. — A duly authenticated deposition taken upon 
 reasonable notice to the opposite party may be read in evidence be- 
 fore any military court or commission in any case not capital, or in 
 any proceeding before a court of inquiry or a military board, if such 
 
COURTS-MARTIAL WITNESSES AND DEPOSITIONS. 85 
 
 deposition be taken when the witness resides, is found, or is about to 
 go beyond the State, Territory, or District in which the court, com- 
 mission, or board is ordered to sit, or beyond the distance of 100 
 miles from the place of trial or hearing, or when it appears to the 
 satisfaction of the court, commission, board, or appointing authority 
 that the witness, by reason of age, sickness, bodily infirmity, impris- 
 onment, or other reasonable cause, is unable to appear and testify in 
 person at the place of trial or hearing: Provided, That testimony 
 by deposition may be adduced for the defense in capital cases. 
 (A. W. 25.) 
 
 [Note. — For form for interrogatories and depositions, see Appendix 12.] 
 
 175. Before whom taken. — Depositions to be read in evidence before 
 military courts, commissions, courts of inquiry, or military boards, 
 or for other use in military administration, may be taken before and 
 authenticated by any officer, military or civil, authorized by the laws 
 of the United States or by the laws of the place where the deposition 
 is taken to administer oaths. (A. W. 26.) 
 
 176. Interrogatories, how submitted. — The procedure for submitting 
 interrogatories for a deposition is as follows : 
 
 (a) The party desiring the deposition submits to the opposite 
 party the interrogatories which he wishes propounded to the person 
 whose deposition he desires, and the opposite party then submits to 
 him such cross-interrogatories, if any, as he may desire. Such addi- 
 tional direct and cross-interrogatories may be submitted as desired; 
 or 
 
 (&) The party desiring the deposition submits to the court, mili- 
 tary commission, or board the interrogatories which he wishes pro- 
 pounded to the person whose deposition he desires. The opposite 
 party then submits to the court, military commission, or board such 
 cross-interrogatories, if any, as he may desire. The court, military 
 commission, or board then submits such additional interrogatories 
 as they may deem proper and desirable, and such additional direct 
 and cross-interrogatories may be submitted as are desired. 
 
 (c) "Where the court, military commission, or board desires that 
 the deposition of a particular person be obtained, it will cause in- 
 terrogatories to be prepared accordingly. The prosecution and de- 
 fense (or other party or parties in interest) then submit such inter- 
 rogatories as they may desire. Such additional interrogatories may 
 be included as are desired by the court, military commission or board, 
 or by a party in interest. 
 
 177. Procedure to obtain deposition. — (a) All the interrogatories to 
 be propounded to the person are entered upon the form for interroga- 
 tories and deposition, and the trial judge advocate, summary court, 
 
86 MANUAL FOE COURTS-MARTIAL. 
 
 or recorder will take appropriate steps to cause the desired deposition 
 to be taken with the least practicable delay. In an ordinary case 
 be will either send the interrogatories to the commanding officer of 
 the post, recruiting station, or other military command at or nearest 
 which the person whose deposition is desired is stationed, resides, or 
 is understood to be, or will send them to some other responsible per- 
 son, preferably a person competent to administer oaths, at or near 
 the place at which the person whose deposition is desired is under- 
 stood to be. In a proper case the interrogatories may be sent to the 
 department or other superior commander or to the witness himself, 
 and in any case they will, when necessary, be accompanied by a 
 proper explanatory letter. 
 
 (i) When interrogatories are received by a commanding officer he 
 will either take or cause to be taken the deposition thereon. He may 
 send an intelligent enlisted man — preferably a noncommissioned 
 officer, if available — to the necessary place for the purpose of ob- 
 taining the deposition, or he may properly arrange by mail or other- 
 wise that the deposition be taken. The deposition will be taken with 
 the least practicable delay, and when taken will be sent at once direct 
 to the judge advocate of the court-martial trying the case or other 
 proper person. 
 
 (<?) If the witness whose deposition is desired is a civilian, the 
 judge advocate or other proper person sending interrogatories as 
 above will inclose with them a prepared voucher for the fees and mile- 
 age of the witness, leaving blank such spaces provided therein as it 
 may be necessary to leave blank, accompanied by the required number 
 of copies of the orders appointing the court, military commission, or 
 board. The judge advocate, summary court, or recorder will also send 
 with the interrogatories duplicate subpoena requiring the witness to 
 appear in person at a time and place to be fixed by the officier, mili- 
 tary or civil, who is to take the deposition. If the name of this officer 
 is not known, the space provided for it will be left blank. If a mili- 
 tary officer takes the deposition, he will complete the witness voucher, 
 certify it, and transmit it to the nearest disbursing quartermaster 
 for payment. When the deposition is to be taken by a civil officer he 
 will be asked to obtain and furnish to the military officer, requested 
 or designated to cause the deposition to be taken, the necessary data 
 for the completion of the witness voucher, and the latter will com- 
 plete the voucher, certify it, and transmit it to the nearest disburs- 
 ing quartermaster for payment. 
 
 In the case of a military witness subpoena will not accompany the 
 interrogatories, but the officer before whom the deposition is to be 
 taken will take the necessary steps to have the witness appear at the 
 proper time and place. 
 
COURTS-MARTIAL WITNESSES AND DEPOSITION'S. 87 
 
 178. Tracing delayed depositions. — Judge advocates will be prompt in 
 preparing and forwarding interrogatories. If the deposition is not 
 received within a reasonable time, a letter of inquiry will be sent; 
 and, if a prompt explanation of the delay is not received, the depart- 
 ment commander or other proper superior will be advised. 
 
 179. Designation of deponent by official title. — Where it is desired to 
 take the deposition of some person holding a certain office or position, 
 as, for instance, a troop commander, first sergeant, quartermaster ser- 
 geant, cashier of a bank, post exchange officer, etc., and the name of 
 the person is unknown, interrogatories may be prepared in the usual 
 way for submission to the person holding the office or position, with- 
 out naming him unless it shall appear that the accused will be preju- 
 diced thereby. 
 
 180. Deponent's answer to be responsive. — Before a witness gives his 
 answers to the interrogatories they should be read and, if, necessary, 
 explained to him, or he should be permitted to read them over in 
 order that his answers may be clear, full, and to the point. The per- 
 son taking the deposition should not advise the witness how he should 
 answer, but he should endeavor to see that the witness understands 
 the questions, and what is desired to be brought out by them, and that 
 his answers are clear, full, and to the point. 
 
 181. Fees for taking depositions. — Civil officers before whom depo- 
 sitions are taken for use before courts-martial will be paid the fees 
 allowed by the law of the place where the depositions are taken. 
 
 182. Taking depositions in foreign country. — If the evidence desired 
 from a witness residing in a foreign country is necessary and mate- 
 rial and is desired to be read before a court-martial, military commis- 
 sion, court of inquiry, or military board sitting within any of the 
 States of the Union or the District of Columbia, interrogatories 
 (accompanied by the necessary vouchers for fees and mileage) will 
 ordinarily be forwarded through military channels to The Adjutant 
 General of the Army. They will then be transmitted by the Secre- 
 tary of War to the Secretary of State, with the request that they be 
 sent to the proper consul of the United States and the deposition of 
 the witness be taken. In the case of troops serving along the inter- 
 national boundaries, outside of the United States proper, or in 
 foreign countries, the officer exercising general court-martial juris- 
 diction may, in his discretion, detail an officer to take the deposition 
 of a civilian witness, or he may send the interrogatories direct to the 
 consul of the United States nearest the place of residence of the 
 witness with the request that the deposition be taken. In the latter 
 case the interrogatories will be accompanied by the proper vouchers 
 for the fees and mileage of the witness. 
 
 [Note. — For use of depositions as evidence, see Chap. XI, Evidence.] 
 
88 MANUAL FOE COUKTS-MARTIAL. 
 
 Section III. 
 FEES, MILEAGE, AND EXPENSES OF WITNESSES. 
 
 183. Officers and soldiers, active or retired. — Officers and soldiers on 
 
 the active list required to attend a court-martial as witnesses are 
 
 not entitled to receive mileage and fees like civilian witnesses but 
 
 are entitled to such travel allowances as the law allows to officers 
 
 and soldiers traveling under orders ; but a retired officer, not assigned 
 
 to active duty, or a retired soldier, is entitled to the per diem and 
 
 mileage provided for civilian witnesses not in Government employ. 
 
 [Note.— The fees, mileage, ana expenses of persons in the military service or 
 of civilians in the Government employ duly subpoenaed and appearing before 
 civil courts whether State or Federal are payable by the civil authorities.] 
 
 184. Civilians in Government employ. — Civilians in the employ of the 
 Government when traveling upon summons as witnesses before 
 military courts are entitled to transportation in kind from their 
 place of residence to the place where the court is in session and 
 return. If no transportation be furnished, they are entitled to 
 reimbursement of the cost of travel actually performed by the short- 
 est usually traveled route, including transfers to and from railway 
 stations, at rates not exceeding 50 cents for each transfer, and the 
 cost of sleeping-car accommodations to which entitled or steamer 
 berth when an extra charge is made therefor. They are also en- 
 titled to reimbursement of the actual cost of meals and rooms at a 
 rate not exceeding $3 per day for each day actually and unavoidably 
 consumed in travel or in attendance upon the court under the order 
 or summons. No allowance will be made to them when attendance 
 upon court does not require them to leave their stations. 
 
 185. Civilians not in Government employ. — A civilian, not in Govern- 
 ment employ, duly summoned to appear as a witness before a mili- 
 tary court, commission, or board or at a place where his deposition 
 is to be taken for use before such court, commission, or board, will 
 receive $1.50 for each day of his actual attendance before such court, 
 commission, or board or for the purpose of having his deposition 
 taken, and 5 cents a mile for going from his place of residence to 
 the place of trial or of the taking of his deposition, and 5 cents a 
 mile for returning, except as follows: 
 
 (a) In Porto Rico and Cuba he will receive $1.50 a day while in 
 attendance as above stated and 15 cents for each mile necessarily 
 traveled over stage line or by private conveyance and 10 cents for 
 each mile over any railway or steamship line. 
 
 (b) In Alaska, east of the one hundred and forty-first degree of 
 west longitude, he will receive $2 a day while in attendance as above 
 stated and 10 cents a mile, and west of said degree $4 a day and 15 
 cents a mile. 
 
COURTS-MARTIAL — WITNESSES AND DEPOSITIONS. 89 
 
 (c) In the States of Wyoming, Montana, Washington, Oregon, 
 California, Nevada, Idaho, Colorado, Utah, New Mexico, and Ari- 
 zona will receive $3 a day for the time of actual attendance as above 
 stated, and for the time necessarily occupied in going to and return- 
 ing from the same, and 15 cents for each mile necessarily traveled 
 over any stage line or by private conveyance and 5 cents for each 
 mile by any railway or steamship. 
 
 [Note. — 1. Travel must be estimated by the shortest usually traveled route — 
 by established lines of railroad, stage, or steamer — the time occupied to be 
 determined by the official schedules, reasonable allowance being made for' 
 unavoidable detention. 
 
 2. These rates apply to the Philippine Islands. (See Cir. 45, A. G. O., 1902.) 
 
 3. A civilian not in Government employ, when furnished transportation on 
 transport or other Government conveyance, is entitled to 57.142 per cent of 5 
 cents per mile (equal to 2.857 cents per mile). (Comp. Dec, Aug. 20, 1902, 
 published in Cir. 45, A. G. O., 1902.)] 
 
 186. Payment for return journey. — The charges for return journeys 
 of witnesses will be made upon the basis of the actual charges allowed 
 for travel to the place of giving testimony, and the entire account 
 thus completed will be paid upon discharge from attendance, without 
 waiting for completion of return travel. 
 
 187. Contents of vouchers. — The items of expenditure authorized for 
 civilian witnesses will be set forth in detail and made a part of each 
 voucher for reimbursement. No other items will be allowed. 
 
 The certificate of the judge advocate, or other officer, will be evi- 
 dence of the fact and period of attendance, and will be made upon 
 the voucher. 
 
 When payment is made under the provisions of paragraph 184, 
 the correctness of the items will be attested by the affidavit of the 
 witness, to be made, when practicable, before the officer who certifies 
 the voucher. 
 
 188. Witness in several trials on same day. — A civilian attending as a 
 witness in several court-martial trials on the same day is entitled to 
 a separate fee for attendance in each case (Dig. Dec. Comp., 1894 to 
 1902, p. 476), but will receive mileage in only one case. 
 
 189. Voucher to be delivered to witness. — A civilian witness not in 
 Government employ who appears to testify is entitled, upon his dis- 
 charge from attendance, to receive from the judge advocate, if any 
 (or summary court, recorder of court of inquiry or board, etc.), his 
 witness voucher properly filled out. If not practicable to deliver to 
 the witness his voucher at that time his address will be obtained and 
 his witness voucher will be promptly forwarded to the nearest dis- 
 bursing quartermaster. To entitle a witness to the payment of fees 
 and mileage it is not essential that he should produce a subpoena. 
 
 190. Lost voucher. — Where the voucher of a witness has been lost, a 
 new voucher may be issued by the judge advocate upon a satisfactory 
 
90 MANUAL FOB COURTS-MARTIAL. 
 
 showing of such loss, supported by affidavit. The new voucher 
 should be so noted as to indicate its character and should be for- 
 warded to the Quartermaster General for settlement. 
 
 191. Fees for service of subpoenas. — There is no fee or compensation 
 fixed by statute or regulation for the service of subpoenas to secure 
 the attendance of witnesses before military courts. Ordinarily serv- 
 ice will be made by an officer or soldier, but if service by a civilian 
 is deemed by the judge advocate or department commander to be 
 preferable, the services of a civilian may be used, and the fees and 
 mileage allowed by law in that locality for similar services may be 
 paid by a quartermaster from the • appropriation " for expenses of 
 courts-martial, etc." 
 
 192. Employment of experts. — When the employment of an expert 
 is necessary during a trial by court-martial the necessity for such em- 
 ployment should be made to appear by a resolution of the court. 
 This resolution will be forwarded by the judge advocate, in advance 
 of the employment, to the Secretary of War through the authority 
 appointing the court, with a request for authority to employ the 
 expert and for a decision as to the compensation to be paid him. 
 The request should, if practicable, state the compensation that is 
 recommended by the judge advocate. The compensation of the ex- 
 pert, including the compensation for photographs that may be neces- 
 
 1 sary in connection with his testimony, will be paid out of the ap- 
 propriation " for expenses of courts-martial, etc." 
 
 [Note. — Where, in advance of trial, the judge advocate knows that the em- 
 ployment of an expert will be necessary, he should, without delay, apply through 
 the appointing authority to the Secretary of War for authority to employ the 
 expert, stating the necessity therefor and probable cost thereof.] 
 
 193. Expenses of courts-martial, etc., how payable. — The fees of civil- 
 ian witnesses, the mileage of both civil and military witnesses, the 
 legal fee of the proper official for certified copy of a marriage certifi- 
 cate, the expense of procuring a transcript of a stenographer's notes 
 of testimony taken before a United States commissioner, the fees of 
 a notary for swearing a witness, and the expenses (including rail- 
 way fare and hotel bills) of a United States consul stationed in a 
 foreign country in taking depositions, when such items are incurred 
 in connection with a trial before a court-martial or military commis- 
 sion, or investigation before a court of inquiry, are paid by the 
 Quartermaster Corps out of the annual appropriation " for expenses 
 of courts-martial, etc." If no quartermaster be present at the place 
 where the court is sitting the vouchers may be transmitted direct to 
 any quartermaster. Such vouchers are not transferable. 
 
 ■[Note. — Blank vouchers may be procured from any disbursing quartermaster.] 
 
CHAPTER XI. 
 
 COURTS-MARTIAL— EVIDENCE. 
 
 (Revised and approved by Professor Wlgmore.) 
 
 Section I. Introductory provisions : Page. 
 
 194. General remarks 93 
 
 195. The issues 94 
 
 196. Analysis of evidence by judge advocate and counsel 95 
 
 197. Duties of court— Opening statements 95 
 
 198. Rules of evidence for courts-martial 96 
 
 199. Rules where found 97 
 
 200. Rules of evidence to be applied irrespective of rank 98 
 
 201. Protection of witnesses 98 
 
 202. Evidence must be material and relevant 98 
 
 Section II. Circumstantial evidence: 
 
 203. Circumstantial evidence 99 
 
 204. Illustration of difference between good and bad circumstantial evidence 99 
 
 205. Evidence of character of accused, and of his services 100 
 
 206. Motive, etc 100 
 
 Section III. Testimonial evidence: 
 
 207. Testimonial evidence 101 
 
 208. Competency rule in general 101 
 
 209. Competency of' witness 102 
 
 210. General capacity of witness 102 
 
 211. Moral incapacity of witness 102 
 
 212. Mental incapacity of witness 102 
 
 213 . Interest or bias ." . . . 102 
 
 214. Where accused is witness. 103 
 
 215. Procedure where accused fails to testify or make a statement 103 
 
 216. Effect of turning state's evidence 104 
 
 217 . Competency of accused when testifying against an accomplice 104 
 
 218. Expert capacity 104 
 
 219. Insanity of accused 104 
 
 220. Testimonial knowledge 106 
 
 221. Hearsay evidence 107 
 
 222. Dying declarations ". 108 
 
 223 . Res gestae 108 
 
 224. Evidence of conspirators and accomplices 110 
 
 225 . Confessions 110 
 
 226. Admissions against interest 112 
 
 227. Privileged communications 113 
 
 228. Privilege of wife and husband to testify 114 
 
 229. Telegrams not privileged 115 
 
 230. Confidential papers 115 
 
 91 
 
92 MANUAL FOE COUETS-MAETIAL. 
 
 Section III. — Testimonial evidence — Continued. Page. 
 
 231. Communications from officers or soldiers to medical officer not privi- 
 
 leged - - 115 
 
 232. Communications between civilian physician and patients not privi- 
 
 leged 115 
 
 233. Compulsory sslf-crimination prohibited 115 
 
 (a) Rule as to questions tending to degrade 116 
 
 (6) Where privilege as to self-crimination ceases 116 
 
 234. Privilege against self-crimination is a personal one 116 
 
 235. Procedure where alleged incriminating question is asked 117 
 
 236. Not self-crimination to require accused to submit to physical exami- 
 
 nation 117 
 
 237. Manner of proving contents of writing 118 
 
 Section IV. Documents: 
 
 238. Public records 119 
 
 239. Certain official writings are evidence of facts recited therein 120 
 
 240. Comparison of handwriting 120 
 
 241. Use of memoranda 121 
 
 242. Memorandum as evidence 121 
 
 243. Memorandum for refreshing recollection 121 
 
 244. Books of account 121 
 
 245. Maps, photographs, etc 122 
 
 Section V. Examination of witnesses: 
 
 246. Witnesses examined apart from each other 122 
 
 247. Objections to competency; when made 122 
 
 248. Number of witnesses required 122 
 
 249. Order of examination of witnesses 123 
 
 250. Direct examination 123 
 
 251. Cross-examination 123 
 
 252. Redirect and recross examination 124 
 
 253. Examination by the court 124 
 
 254. Leading questions 124 
 
 255. Recalling of witnesses 125 
 
 Section VI. Credibility of witnesses: 
 
 256. What credibilty consists in 125 
 
 257. Proof of character by general reputation 126 
 
 258. Conviction of crime 126 
 
 259. Self-contradiction 126 
 
 260. Prejudice, bias, etc 126 
 
 261. Credibility of accused as a witness 126 
 
 262. Proof of contradictory statements out of court 126 
 
 Section VII. Depositions and former testimony: 
 
 263. Depositions admissible 127 
 
 264. Depositions for defense in capital cases 127 
 
 265. Objections as to competency of witnesses and admissibility of evidence 127 
 
 266. Examination of deposition by counsel 127 
 
 267. Reading of depositions 127 
 
 268. Miscellaneous provisions as to depositions 128 
 
 269. Affidavits not admissible 128 
 
 270. Certificate of discharge 128 
 
 271. Statement of service 128 
 
 272. Former testimony before court of inquiry 128 
 
 273. Evidence of pardon 128 
 
 274. Evidence of former trial by court-martial or civil court 129 
 
 275. Former testimony in civil courts and courts-martial 129 
 
EVIDENCE. 93 
 
 Section VIII. Presumptions: Page. 
 
 276. Presumptions 130 
 
 277. Presumptions of law 130 
 
 278. Presumptions of fact 130 
 
 279. Prima facie evidence 131 
 
 280. Intent in connection with crime 131 
 
 281. Intent in military cases 131 
 
 282. Ignorance of law 132 
 
 283. Ignorance of fact ^ 133 
 
 284. Evidence of desertion ' 133 
 
 (a) Statutory rules of evidence 134 
 
 285. Drunkenness as showing. absence of intent 135 
 
 286. Drunkenness in military cases .' 136 
 
 287. Proof of drunkenness 136 
 
 288. Reasonable doubt and burden of proof 136 
 
 Section IX. Judicial notice: 
 
 289. Judicial notice 137 
 
 Section I. 
 
 INTRODUCTORY PROVISIONS. 
 
 194. General remarks. — The oath taken by members of general and 
 special courts require them to try and determine " according to 
 evidence " the matter before them. A summary court, although it 
 does not take such an oath, will also determine the matter before it 
 solely on the evidence in the case, and no evidence would be admis- 
 sible before a summary court that is not admissible before general 
 and special courts. The evidence thus referred to, according to 
 which the court must decide the case, means all the matters of fact 
 which the court permits to be introduced, or of which it takes judicial 
 notice, with a view to prove or disprove the charges. Every item of 
 this evidence must be introduced in open court, and it would be 
 seriously irregular and improper for any member of the court to 
 convey to other members, or to consider himself, any personal in- 
 formation that he possessed as to the merits of the case or the charac- 
 ter of the accused, without stating it in open court and, if a witness 
 for the prosecution, retiring as a member of the court, as provided in 
 A. W. 8. But while their knowledge of the facts must come to them 
 from the evidence, the members are expected to utilize their common 
 sense, their knowledge of human nature and the ways of the world 
 in weighing the evidence and arriving at a finding. In the light of 
 all the circumstances of the case they should consider the inherent 
 probability or improbability of the evidence given by the several 
 witnesses, and with this in mind the court may properly believe 
 one witness and disbelieve several whose testimony is in conflict 
 with that of the one. 
 
94 MANUAL FOR COURTS-MARTIAL. 
 
 The methods which are employed by courts of justice to ascertain 
 the facts — that is, the truth — respecting any past transaction closely 
 resemble those resorted to by an individual for a similar purpose. If 
 A desires to ascertain whether a particular act did or did not take 
 place, he addresses himself to those who were in a situation to witness 
 the occurrence itself, and so endeavors to obtain from each person 
 present his version of the occurrence. From the testimony thus ob- 
 tained he forms his conclusion as to whether or not the act took 
 place. In the course of his investigation, however, he finds that all 
 who were present and witnessed the occurrence as bystanders do not 
 give testimony of equal importance or value. Some having greater 
 powers of observation or better memories than others give in conse- 
 quence more valuable testimony. Some of the witnesses, being chil- 
 dren or persons of weak or unsound mind, are without the requisite 
 mental capacity to observe facts or to appreciate their relations to 
 each other; others, by reason of their bad character, are not regarded 
 as worthy of belief by their fellow citizens ; still others were insane 
 or quite under the influence of intoxicating liquor at the time of the 
 occurrence, and so were incapacitated from observing. A, therefore, 
 rejects some of the statements as entirely untrustworthy; to others 
 he attaches weight in proportion to their worthiness of belief, and 
 so endeavors to reach a conclusion as to the truth of the occurrence or 
 event which was the original subject of his inquiry. (Davis, p. 244.) 
 
 195. The issues. — It is well to understand, in the beginning of this 
 consideration of the rules of evidence, the purpose for which the evi- 
 dence is to be introduced in the manner prescribed and laid down 
 by the rules. The purpose is to elucidate and settle the issues raised 
 in the case and to confine, under a well devised and developed system 
 of limitations that experience has shown to best conserve the inter- 
 ests of all concerned, the evidence to such issues. 
 
 In every criminal case the burden is on the prosecution to prove, 
 by relevant evidence, (a) that the offense charged was really com- 
 mitted, (b) that the accused committed it, and (c) that the accused 
 had the requisite criminal intent at the time. These three facts 
 broadly constitute the issues in the case. Incidental issues will be 
 formed by the necessity for proof of the essentials — that is, the gist — 
 of an offense and as to character. Not only the allegations set out 
 in the charges and specifications, but the component parts of such 
 allegations as well, raise the issues to be decided. For instance, in a 
 case of larceny, where it is charged that the accused "did take, steal, 
 and carry away " certain articles of value, the component parts of the 
 allegation not specifically set out are that such articles were taken 
 (a) fraudulently and (&) with the felonious intent of depriving the 
 owner of them. 
 
EVIDENCE. 95 
 
 196. Analysis of evidence by judge advocate and counsel. — The ends of 
 justice and saving of time of all concerned imperatively demand 
 careful analysis by both judge advocate and counsel for accused of 
 the evidence requisite for proof of and defense against the offenses 
 charged. As a prerequisite to such analysis the law as to the offenses 
 charged should be studied with a view to determining the essential 
 elements of the offense; that is, the things that must be proved by 
 the judge advocate in order to justify a conviction and those that 
 must be proved by the defense to disprove or place in reasonable 
 doubt the proof offered by the prosecution. In other words, the 
 prosecution and defense should limit the proffer of testimony to 
 that which is relevant to these issues, and these only, and should 
 prepare the case with only that in view. The essentials or gist of 
 the offense (see Chap. XVII) should be so clearly defined in the 
 preparation of the case that both the judge advocate and counsel 
 for accused may be ready, by appropriate objections before the court, 
 to limit the introduction of evidence to relevant matter only, bearing 
 in mind that only the essentials of the offense must be proved and 
 that what may be properly considered surplusage may be disregarded. 
 
 Before trial an examination of all the sources of the evidence to 
 be submitted should be made by the judge advocate and counsel for 
 accused and a determination as to the order in which it will be intro- 
 duced should be reached. The case should be presented in sequence 
 of events as nearly as possible, just as a story would be told by one 
 party who had seen everything to which the different witnesses will 
 testify. When several offenses are charged, especially if unrelated, 
 the evidence should be directed to the development of their proof in 
 the order charged, so that neither the court nor the accused may be 
 in doubt at any time as to the specific offense to which the testimony 
 being given refers. Counsel for accused should adhere to the same 
 principle in presenting evidence for the defense. 
 
 197. Duties of court— Opening statements. — If the court will augment 
 the preparation invoked in the preceding paragraph by constantly 
 bearing in mind what the issues are and holding judge advocate 
 and counsel strictly to them, it will tend to the expedition of business., 
 the securing of justice, and the conservation of the interests of all 
 concerned. The court should have before it as a guide, always by 
 reference to this manual in each case, the following essential con- 
 siderations as to any evidence that may be tendered: (1) That it is 
 relevant to the issue; (2) that it is not within the rule rejecting 
 hearsay evidence; (3) that, if it is a confession or admission, it is 
 legally admissible; (4) that where documents are used the original 
 should be obtained (except when a copy is admissible) and that the 
 genuineness should be verified; (5) that any witnesses called are 
 
96 MANUAL FOR COURTS-MARTIAL. 
 
 legally competent to give evidence; (6) that the examination of 
 witnesses is fairly and properly conducted. (British Manual.) 
 
 Further reference will always be had to the paragraph of the 
 manual that sets out the gist of the offenses charged (see Chap. 
 XVII), and this will be read to the court in each case by the judge 
 advocate immediately after the 'accused has pleaded to the charges 
 and specifications. 
 
 It will be appropriate in all cases — and in an important or compli- 
 cated case it will be required by the court— for the judge advocate, 
 before proceeding with the introduction of evidence, to make a brief 
 statement of " the nature of the issues to be tried and what he expects 
 to prove" (1 Thompson on Trials, 246) to sustain them. Counsel 
 for the accused may also make an opening statement as to his de- 
 fense, either just following the statement of the judge advocate 
 or just after the judge advocate has rested his case, as counsel deems 
 better, but the latter course is customary. It would be highly repre- 
 hensible for either judge advocate or counsel to get before the court 
 in such opening statement, as a probable means of influencing its 
 judgment, matters as to which no evidence is intended to be offered 
 or as to which it is known that the evidence to be offered is clearly 
 inadmissible, just as it would be so reprehensible for either to suggest 
 for the same purpose, by questions propounded to a witness, matters 
 •known not to exist or that the rules of evidence clearly make inad- 
 missible. 
 
 198. Rules of evidence for courts-martial. — Prior to the act of August 
 29,1916 (A. W.,38), courts-martial followed in general the rules of 
 evidence, including the rules as to competency of witnesses to testify, 
 that are applied by Federal courts in criminal cases. These consisted 
 of the rules of the common law as they existed in the several States 
 at the adoption of the Federal Constitution in 1789, as modified 
 from time to time by subsequent acts of Congress. But courts- 
 martial were, however, not required by express statute to follow these 
 rules, and have always been allowed to pursue a more liberal course 
 in regard to the admission of testimony than do, habitually, the 
 civil tribunals. Their purpose was to do justice; and if the effect 
 of a technical rule was found to be to exclude material facts or 
 otherwise obstruct a full investigation, it was deemed that the rule 
 may and should be departed from. Proper occasions, however, for 
 such departures were regarded as exceptional and unfrequent. (Win- 
 throp, 473.) It was believed that "courts-martial had much better 
 err on the side of liberality toward a prisoner than, by endeavoring 
 to solve nice and technical refinements of the laws of evidence, assume 
 the risk of injuriously denying him a proper latitude for defense." 
 (G. C. M. O. 32, 1872; see 3 Greenleaf, sees. 469, 476.) And now, 
 by the provisions of the act of August 29, 1916 (38 A. W.) : 
 
EVIDENCE. 97 
 
 ■ The President may, by regulations which he may modify from 
 time to time, prescribe the procedure, including modes of proof, in 
 cases before courts-martial, coiirts of inquiry, military commissions, 
 and other military tribunals : Provided, That nothing contrary to or 
 inconsistent with these articles shall be so prescribed : Provided fur- 
 ther, That all rules made in pursuance of this article shall be laid 
 before the Congress annually. 
 
 The modes of proof, therefore, including the rules of admissibility 
 for witnesses and other evidence, are now by express congressional 
 enactment placed under the authority of Executive regulation; and 
 the rules laid down in this Manual have the force of such regula- 
 tion. They therefore form the only binding rules, except such rules 
 of evidence as are expressly prescribed (1) in the Articles of War; 
 (2) in the Federal Constitution; and (3) in such Federal statutes 
 as expressly mention courts-martial. 
 
 199. Rules, where found. — The common-law rules, with their legis- 
 lative modifications, will be found in the various textbooks on the 
 subject of evidence. These rules have been the subject of much in- 
 terpretation by the courts, which will be found in the published de- 
 cisions of such courts. While resort to textbooks and decisions will 
 sometimes be necessary in the trial of an especially difficult case, it 
 is the purpose of this chapter to state the rules of evidence applicable 
 to trials by courts-martial in sufficient fullness to cover the field in 
 practically all cases. Where the rule herein laid down is clear it 
 should be taken as law (subject to the discretionary relaxation noted 
 in par. 198) , unless modified by Federal statute or some decision of the 
 Federal courts made since the date of the publication of the Manual. 
 
 Where, in the preparation of a case, the judge advocate or counsel 
 finds that the rules laid down in this chapter are not sufficiently 
 specific clearly to settle a specially important question as to the com- 
 petency of a witness to testify or as to the admissibility of evidence 
 intended to be introduced or the exclusion of such as the nature of the 
 case or other information indicates will be offered, he should secure 
 in advance of the trial and have with him in court authorities to 
 sustain his contentions for such admission or exclusion. 
 
 But it should be kept in mind that the use of such authorities is 
 merely to inform the court of the reason of a rule or the good sense 
 and fairness of a proposed ruling, and not to control the decision of 
 the court with binding effect. This caution rests on the two grounds 
 of principle : First, because the State decisions and statutes, and the 
 writers of treatises, never have had any binding effect on courts- 
 martial, the Federal statutes and decisions being the only ones that 
 are entitled to such effect; and, secondly, because since the Federal 
 statute of August 29, 1916 (A. W., 38), the modes of proof in courts- 
 70844°— 16 8* 
 
98 MANUAL FOE COTJETS-MARTIAL. 
 
 martial are governed by regulations issued by presidential order, as 
 explained in par. 198. 
 
 200. Rules of evidence to be applied irrespective of rank. — The rules of 
 evidence should be applied by military courts irrespective of the 
 rank of the person to be affected. Thus a witness for the prosecu- 
 tion, whatever be his rank or office, may always be asked on cross- 
 examination whether he has not expressed animosity toward the 
 accused, as well as whether he has not on a previous occasion made 
 a statement contradictory to or materially different from that em- 
 braced in his testimony. Such questions are admissible by the estab- 
 lished law of evidence and imply no disrespect to the witness, nor 
 can the witness properly decline to answer them on the ground that 
 it is disrespectful to him thus to attempt to discredit him. (Digest, 
 p. 529, XI, A, 3.) 
 
 201. Protection of witnesses. — It is the duty of the court to protect 
 every witness from irrelevant, insulting, or improper questions ; from 
 harsh or insulting treatment ; and from unnecessary inquiry into his 
 private affairs. The court must forbid any question which appears 
 to be intended merely to insult or annoy a witness, or which, though 
 proper in itself, appears to be needlessly offensive in form. (Pro- 
 posed codification, N. Y. Rules.) 
 
 202. Evidence must be material and relevant. — Evidence to be admis- 
 sible must be not only material but relevant to the issues in the case. 
 Evidence is not material when the fact which it aims to prove is 
 not a part of the issues in the case. Evidence is not relevant when, 
 though the fact which it aims to prove is material, yet the evidence 
 itself is too remote or far-fetched to have any probative value for 
 that purpose. Where evidence is apparently irrelevant it may, how- 
 ever, be admitted provisionally upon a statement of the judge advo- 
 cate or counsel that other facts to be proved will show its relevancy, 
 but the court should afterwards exclude it, if its relevancy is not 
 shown. Indirect evidence is known as circumstantial evidence, and 
 signifies merely any and all evidence which is not testimonial; i. e., 
 the assertion of a witness or other person. For example, on a charge 
 of larceny of a wallet, the statement of a witness that he saw the ac- 
 cused take the wallet from the owner's overcoat is testimonial evi- 
 dence; the finding of the wallet hidden in the blanket belonging to 
 the accused is circumstantial evidence. Obviously, a fact constituting 
 circumstantial evidence must itself usually be proved in its turn by 
 testimonial evidence ; for example, the finding of the wallet as indi- 
 cated above would be evidenced by a sergeant's testimony that he 
 searched the accused's blanket and found the wallet. 
 
 Testimonial evidence is thus classed by itself ? because the weight 
 to be given to testimony is subject to a group of considerations which 
 affect all human assertions alike. 
 
EVIDENCE. 99 
 
 Section II. 
 
 CIRCUMSTANTIAL EVIDENCE. 
 
 203. Circumstantial evidence. — Circumstantial evidence is not resorted 
 to because there is an absence of direct or testimonial evidence. It is 
 introduced even when there is direct evidence; nor is it an inferior 
 substitute for direct evidence. Circumstantial evidence may furnish 
 a safe and satisfactory ground for belief, while on the other hand 
 direct or testimonial evidence may leave the court in doubt. The 
 proper effect of circumstantial as compared with direct evidence has 
 been stated as follows: 
 
 When circumstances connect themselves closely with each other, 
 when they form a large and strong body so as to carry conviction to 
 the minds of a jury, it may be proof of a more satisfactory sort than 
 that which is direct. In some lamentable instances it has been known 
 that a short story has been got by heart by two or three witnesses ; 
 they have been consistent with themselves, they have been consistent 
 with each other, swearing positively to a fact, which fact has turned 
 out afterwards not to be true. It is almost impossible for a variety 
 of witnesses, speaking to a variety of circumstances, so to concoct a 
 story as to impose upon a jury by a fabrication of that sort, so that 
 where it is cogent, strong, and powerful, where the witnesses do not 
 contradict each other or do not contradict themselves, it may be 
 evidence more satisfactory than even direct evidence, and there are 
 more instances than one where that has been the case. (Wigmore, 
 26.) In a case depending upon circumstantial evidence the court, in 
 order to convict, must find the circumstances to be satisfactorily 
 proved as facts, and must also find that those facts clearly and un- 
 equivocally imply the guilt of the accused and can not reasonably 
 be reconciled with any hypothesis of his innocence. (Davis, p. 265.) 
 
 204. Illustration of difference between good and bad circumstantial evi- 
 dence. — The accused is charged with stealing clothes from the locker 
 of a comrade. The following circumstances are not admissible as 
 circumstantial evidence: 
 
 (1) The accused is very much disliked by other members of his 
 company. 
 
 (2) A number of thefts from comrades have taken place iu the 
 company, and the general belief in the company is that he was con- 
 nected with them. 
 
 (3) He was tried once before for larceny of clothes from a com- 
 rade and was convicted. 
 
 (4) He is suspected of being a deserter from a foreign army. 
 
 (5) He belongs to a race or enlisted in a locality that does not 
 entertain very strict notions of right and wrong as to the manner of 
 acquiring possession of property. 
 
100 MANUAL FOE COTJETS-MARTIAL. 
 
 But the following series of circumstances should be admitted in 
 evidence : 
 
 (1) The clothes were taken while the company was at drill, and 
 there was no one known to have been in the room where the locker 
 was. 
 
 (2) The accused was not at drill, but was detailed as kitchen police 
 that day. 
 
 (3) He was absent from his duty as kitchen police a short while 
 during the time when the clothes disappeared. 
 
 (4) One of the articles stolen was found in the locker of the 
 accused. 
 
 (5) The accused was known to be without money the day before 
 the larceny, and that evening left the post with a bundle under his 
 arm and was seen to enter a certain house and the same night had 
 money in his possession. 
 
 (6) Upon the house being searched next day most of the missing 
 clothes were found there. 
 
 (7) The person found in the house identified the accused as the 
 one from whom he had purchased the missing clothes. 
 
 205. Evidence of character of accused and of his services. — In trials 
 by court-martial the good character of the accused, as evidenced by 
 his reputation, may become of importance in four classes of cases: 
 First, when the evidence of guilt is hot strong evidence of the good 
 reputation of the accused will strengthen the presumption of inno- 
 cence; second, when the punishment is discretionary such evidence 
 may be introduced with a view to inducing the court to impose a 
 milder sentence in the case of a plea of guilty or a conviction ; third, 
 when the punishment is mandatory such evidence may be introduced 
 with a view to inducing the court to recommend clemency ; fourth, in 
 any case such evidence may be introduced with a view to inducing the 
 reviewing authority to extend clemency. An accused may also intro- 
 duce evidence of his character and services. In any such case, if 
 the accused offers evidence as to character, record, or services, as 
 shown by statement of service or otherwise, the prosecution may re- 
 but such evidence. (See 1, 2, 4, and 5, par. 204, p. 99, for illustrations 
 of what may not be used in rebuttal to evidence bad character.) Evi- 
 dence as to the bad character of an accused, offered by the prosecution ' 
 or at the solicitation of the court prior to the introduction by the 
 accused of evidence as to his good character, is inadmissible. Not 
 even the fact that before the introduction of such evidence the ac- 
 cused consented to its introduction will make it any the less irregular. 
 If, however, the accused takes the witness stand his character for 
 veracity as a witness may be attacked as in the case of any other 
 witness. 
 
 208. Motive, etc. — Motive or lack of motive as impelling the accused 
 toward or against the act charged or that class of acts often throws 
 
EVIDENCE. 101 
 
 a flood of light upon the issue as to guilt or innocence. So important 
 has it been deemed for the ascertainment of truth that it has invoked 
 exceptions to the character rule. Thus the doing of another crim- 
 inal act, not a part of the issue, while not admissible as evidence 
 of the doing of the criminal act charged, or of the bad moral char- 
 acter of the accused, is admissible when offered for the specific pur- 
 pose of evidencing design, plan, motive, identity, knowledge, or 
 other relevant facts distinct from moral character. (Wigmore's P. 
 C. 64, 65.) 
 
 Illustrations. — (1) In a trial for arson of a barn, the defendant's 
 attempt on two former occasions to burn houses in other parts of the 
 town is not admissible, unless for the purpose of evidencing intent 
 or motive. 
 
 (2) On a charge of murder by poison, the defendant's murders of 
 other members of the same family by poison, if admissible to show 
 motive or intent, are not excluded because they are criminal acts 
 and might cause undue prejudice. (Wigmore's P. C. 64, 65.) 
 
 (3) The declarations, threats — especially his other similar criminal 
 acts — of the accused are admissible. 
 
 (4) When the accused is charged with having knowingly com- 
 mitted an offense or having knowledge of the essence of the offense, 
 prior similar acts that would probably have led to some knowledge 
 or warning would be admissible. 
 
 Section III. 
 
 TESTIMONIAL EVIDENCE. 
 
 207. Testimonial evidence. — Testimonial evidence is the statement of 
 some person offered as evidencing the fact asserted by it. For ex- 
 ample, a statement that a rifle was discharged at a certain hour and 
 place is testimonial evidence that it was so discharged. 
 
 Such statements may be made either in "court or out of court. If 
 made in court as a witness, then the witness must be " competent." 
 If made out of court, then even if he is competent, the statement is 
 not admissible, because the hearsay rule forbids. 
 
 The competency of the witness is therefore the important thing 
 to determine before admitting testimonial evidence. 
 - 208. Competency rule in general. — The.modern tendency, as evidenced 
 to a great extent by statutes of different States, and to a limited 
 extent by Federal statutes, is to recognize practically no grounds for 
 incompetency, but to admit the material and relevant testimony of a 
 witness offered by either side and leave his credit to be estimated ac- 
 cording to all the circumstances. 
 
 Among the few common -law grounds of incompetency (see par. 
 198) now remaining in some States, but no longer to be recqgnized in 
 
102 MANUAL FOR COURTS- MAKTIAL. 
 
 courts-martial, are (1) conviction of felony and of. misdemeanors 
 involving dishonesty ("crimen falsi"), especially perjury; (2) re- 
 lationship, as wife or husband of the accused. (See pars. 211 and 
 213.) 
 
 209. Competency of witness. — The competency of a witness depends 
 upon several elements, which may be divided thus: (1) His general 
 moral and mental capacity; (2) his special expertness in subjects on 
 which expertness is required; (3) his knowledge of the specific facts 
 on which he testifies. 
 
 210. General capacity of witness. — The general capacity of an adult 
 witness is always presumed; i. e., the party disputing it must always 
 prove to the court the specific ground of incapacity or else the witness 
 should be allowed to testify. The admissibility of children as wit- 
 nesses is not regulated by their age, but by their apparent sense and 
 understanding. Children, therefore, of any age, may be examined, if 
 capable of distinguishing between good and evil, but always under 
 oath. 
 
 There are very few grounds of incapacity to-day recognized by the 
 law. 
 
 211. Moral incapacity of witness. — Moral incapacity was recognized 
 in the common-law rule that rendered incompetent as a witness any 
 person convicted of treason, felony, or the crimen falsi. 
 
 But this incapacity has been abolished in almost all States, except 
 that several retain it with a restriction to convictions for perjury. 
 In courts-martial, conviction of any offense does not disqualify a 
 witness. But it may, of course, be shown to diminish his credit. 
 (See Credibility of witnesses, Sec. VI, post.) 
 
 212. Mental incapacity of witness. — Mental incapacity is a disquali- 
 fication, but only to a limited extent, as follows : Insanity or intoxi- 
 cation may disqualify, but only to the extent to which they affect the 
 subject of the testimony. For example, a religious hallucination as 
 to angels saving a man from bullets does not disqualify the person 
 from testifying as to the time of lighting a camp fire or the persons on 
 duty at a certain post. Intoxication would disqualify only if it was 
 so complete as to render the person senseless at the time of the event 
 to be testified to. 
 
 213. Interest or bias. — Interest or bias does not disqualify ; i. e., the 
 fact that a person owes a party money or has a property interest with 
 or against a party, does not disqualify him from testifying for or 
 against that party. A person who is a relative or an avowed enemy 
 of the accused is not disqualified from testifying for or against the 
 accused. The weight of such testimony when admitted is a different 
 matter. (See Credibility of witnesses, Sec. VI, post.) 
 
 Marital relationship was a disqualification at common law. Except 
 in certain cases, husband or wife could not testify either for or 
 
EVIDENCE. 103 
 
 against one another. This rule has been abolished in most States. 
 In courts-martial the rule is as follows : 
 
 (1) Wife or husband of an accused may testify on behalf of the 
 accused without restriction. 
 
 (2) "Wife or husband of an accused may not be called to testify 
 against the accused without the consent of both accused and witness, 
 unless on a charge of an offense committed by the accused against the 
 witness. 
 
 (3) Wife or husband of any person may not testify to confidential 
 convmunications of the other, unless the other give consent. 
 
 The last two rules are rules of privilege, and are more fully stated 
 under " Privilege." 
 
 214. Where accused is witness. — It was provided by act of Congress 
 of March 16, 1878 (20 Stat., 30) , that in trials by courts-martial and 
 courts of inquiry as well as by United States courts and Territorial 
 courts, the accused " shall at his own request, but not otherwise, be a 
 competent witness," and that " his failure to make such request shall 
 not create any presumption against him." An accused person thus 
 may, at his option, take the stand as a witness, but in so doing he 
 occupies no exceptional status and becomes subject to cross-examina- 
 tion like any other witness. The same rules as to the admissibility 
 of evidence, privilege of the witness, impeaching of his credit, etc., 
 will apply to him as to any other witness, and the only noticeable 
 difference between his examination and that of other witnesses will 
 be that he will in general, naturally and properly, be exposed to a 
 more searching cross-examination. (Winthrop, 508.) So far as the 
 latitude of the cross-examination is discretionary with the court, a 
 greater latitude may properly be allowed in his cross-examination 
 than in that of other witnesses (id., 545), but, like them, he may not 
 be cross-examined beyond the field of his direct examination, except 
 to test his credibility as a witness. Where he is charged with a series 
 of offenses and, taking the stand in his own defense, testifies as to a 
 part of them only, he can not be cross-examined as to the others. 
 
 215. Procedure where accused fails to testify or make a statement. — 
 In each case tried by a general court-martial in which the accused 
 does not testify or make any statement in his own behalf, it shall ap- 
 pear on record that the president of the court explained to the ac- 
 cused that he may testify in his own behalf if he so desire, or may 
 make an unsworn statement to the court in denial, in explanation, or 
 in extenuation of the offense with which he stands charged. The 
 explanation by the president and the reply of the accused thereto 
 shall appear upon the record of trial. The same rule will apply in 
 cases tried by special court-martial when the evidence heard is made 
 of record. 
 
104 MANUAL FOR COURTS-MARTIAL. 
 
 218. Effect of turning state's evidence. — The fact that an accomplice 
 turns state's evidence does not make him immune from trial, unless 
 immunity has been promised him by the authority competent to 
 order his trial. But, if an accomplice goes on the stand and makes 
 a full and frank statement of the. circumstances of the offense, it is 
 customary to pardon his offense, or impose upon him a milder pun- 
 ishment than upon his accomplices. 
 
 217. Competency of accused when testifying against an accomplice. — 
 The rule of the common law was that an accused person was in- 
 competent to testify for or against his accomplices. This rule is 
 nullified by the act making the accused a competent. witness when 
 testifying at his own request. The rule now is that when an accused 
 chooses to testify he may do so, and that it does not matter whether' 
 his testimony is for or against himself or for or against his code- 
 fendant. (Wolfson v. IT. S., 101 Fed. Rep., 436.) 
 
 218. Expert capacity. — On most matters, the ordinary experience 
 of any adult qualifies him to observe and testify. Hence, all persons 
 are ordinarily qualified to testify on ordinary matter. But, when the 
 subject is one upon which special experience is required, it will not be 
 presumed that a witness possesses such special experience, for ordi- 
 narily he does not. Hence, a witness called upon such a subject must 
 be shown to possess such special experience; he is therefore called 
 an " expert " oh that subject. A person may be an expert on one 
 subject, but not on another. Hence, whenever such a topic calls for 
 testimony, the witness' special experience in it must first be shown. 
 Whether a piece of leather has been recently tanned ; whether a stain 
 is human blood or animal blood, are instances of topics which might 
 well require experts, if important to the issue. 
 
 In applying this rule, pedantry would be out of place. Experts 
 on all subjects are seldom within reach of a court-martial, and liber- 
 ality of application is a necessity. Good sense and ordinary caution 
 will determine whether an expert is needful for accurate discovery 
 of the truth. For example, an expert in alcohol would hardly be 
 needed to testify to whether the contents of a certain bottle were suf- 
 ficiently alcoholic to be intoxicating, but in a homicide case, where 
 the cause of death was disputed, obviously a medical man's testimory 
 should be secured. 
 
 219. Insanity of accused. — Where the existence of mental disease or 
 derangement on the part of the accused, either at the time of the 
 trial or at the time of the commission of the alleged wrongful act, 
 becomes an issue in the trial of the case, the court will stop its pro- 
 ceedings and immediately report the fact to the convening au- 
 thority. The convening authority will forthwith order a board of 
 medical officers to take the accused under their personal observation 
 for such length of time as may be sufficient to determine the nature 
 
EVIDENCE. 105 
 
 and extent of the disease or derangement, if any, and to extend 
 their examination, in a case of any doubt, to written inquiries di- 
 rected to probation officers, physicians, clergymen, school and prison 
 authorities, mayors, postmasters, etc., for the purpose of fully de- 
 veloping, from any trustworthy sources, the question as to any men- 
 tal, moral, or physical defects of childhood, or later, that may throw 
 light upon the question as to whether the accused at the time of 
 the wrongful act had the necessary criminal mind to commit the 
 wrongful act charged. Where the information from any source in- 
 dicates the absence of insanity, the accused will be entitled to cross- 
 examine the party giving such information. Such information and 
 its source will be brought to the attention of the judge advocate, 
 who will confer with the counsel for the accused for the purpose of 
 securing the presence of the informant for cross-examination before 
 the court, or his deposition if he is not available to testify. 
 
 The medical board will make a written circumstantial report as 
 to the character of their observations, attach thereto such written 
 evidence as may have been considered, and state their opinion as a 
 board, or individually if. there is any difference of opinion, as to 
 whether or not the accused had at the time of their report sufficient 
 mental capacity to justify his being brought to trial, or had at the 
 time of the wrongful act the necessary criminal mind to commit 
 the wrongful act charged, and will further state their opinion, if 
 it is found that the accused did not have the necessary criminal mind 
 to commit the wrongful act charged, as to whether the accused 
 would be now a menace to the public safety. 
 
 The medical report as a whole will be admissible in evidence, 
 and when admitted the court will have called as a witness for the 
 court at least one of the members of the board to be thoroughly 
 examined, as if on cross-examination, by counsel for the accused, the 
 judge advocate or the court, as to any feature of the report, and on 
 request of the accused the remaining members of the board shall 
 be called for cross-examination. 
 
 If insanity is indicated to either judge advocate or counsel for 
 accused prior to the assembling of the court it would be appropriate 
 for the judge advocate, at request of counsel for accused or of his 
 own motion, to report such indications to the reviewing authority 
 with the idea of obviating the necessity for the assembling of the 
 court until a medical board had been convened and reported as 
 outlined above. 
 
 In any case where the convening authority accepts the finding of 
 the board on the question as to necessary criminal mind and decides 
 to withdraw the case from consideration of the court-martial it 
 would accord with modern ideas of justice, if any doubt whatsoever 
 existed as to the accused having committed the wrongful act charged 
 
106 MANUAL FOB COURTS-MARTIAL. 
 
 against him, to grant, upon request of counsel or a member of the 
 accused's family, a trial upon the charge with a view to relieving him, 
 though insane, of the stigma attached to the accusation. In such 
 instance the case should be proceeded with, and if the court deter- 
 mines that the accused committed the wrongful act charged but was 
 insane at the time of its commission or at the time of trial the find- 
 ings will be to that effect. And in any case where a finding by the 
 court of "not guilty" would be based upon lack of criminal mind, 
 the findings should be in accordance with those prescribed by the 
 preceding sentence. 
 
 220. Testimonial knowledge. — A prime qualification in a witness is 
 that he should speak only of what he has observed with his senses, 
 or had an opportunity to observe. E. g., a witness on sentry post at 
 night might testify that he heard three shots and saw two per- 
 sons running in the distance, but should stop with telling what he 
 heard and saw. To proceed further and state that the shots killed 
 a mule and that the accused was one of the persons running may in- 
 volve beliefs of his that are based on rumors and gossip picked up 
 afterwards, beliefs for which he has no status as a witness. An im- 
 portant feature of correct trial methods is to summon every person 
 who saw or heard anything revelant, but to require every such per- 
 son to limit his testimony to what he himself saw or heard. In this 
 way the court arrives (if the testimony be credited) at the basic cir- 
 cumstances on which the proof must be built up. 
 
 This rule also has, of course, its liberal side, based on practical 
 experience. For example, if the issue be as to a stolen case of soap, 
 and the quartermaster has an invoice showing 400 cases received, and 
 he is asked how many are remaining in stock, it is not necessary that 
 he should personally count every case; it might suffice if he ticked 
 off 39 large bales of 10 cases, each intact, and then found a bale of 
 9 with 1 missing. 
 
 This fundamental principle of requiring personal knowledge (or 
 opportunity to observe) leads up to the hearsay rule, applicable to 
 statements made by persons not in court. The hearsay rule signifies 
 that when a witness testifies not to what he himself saw or heard 
 but to what he heard some one else say, his testimony on that point 
 shall be rejected, and the person who said it shall be produced in 
 the court to testify, the object being to get at the first-hand source of 
 knowledge. " Experience shows again and again that when that other 
 person is produced either what he actually said was something very 
 different or else when cross-examined he turns out to have only a 
 scanty trustworthiness. For example, if the sentry in the above in- 
 stance testifies that he did not identify the person running, but after- 
 wards in barracks Sergt. S said that it was X, the court would ex- 
 clude what Sertg. S said, would summon S to testify in person, and 
 
EVIDENCE. 107' 
 
 then it might appear that all Sergt. S knows about it is that X came 
 into barracks half an hour later looking as if he were out of breath, 
 and this might be connected up with an errand on which X had been 
 sent, by testimony of his captain. The hearsay rule, therefore, is 
 a corollary of the principle that a witness must testify from what 
 he has himself seen and heard, and not from what another person 
 has told him or written to him. 
 
 221. Hearsay evidence. — The hearsay rule is subject to some well- 
 established exceptions; most of them are based on the general prin- 
 ciple that there is an unavoidable necessity for using the hearsay, 
 because the person is deceased or for some other reason can not be 
 secured as a witness. These exceptions are now settled, however, into 
 fixed rules, irrespective of the above principle. 
 
 Nevertheless, in courts-martial the liberal principle, now adopted 
 in one or two States, may well be followed in extreme cases, viz, 
 wherever the person, whose statement is desired to be offered (whether 
 written or oral) , is deceased at the time of the trial, and was a per- 
 son having personal knowledge of the facts, his statement may be 
 admitted, in the discretion of the court. The following are familiar 
 instances of hearsay in court-martial cases : 
 
 (1) A soldier is being tried for desertion. Pvt. A is able to testify 
 that Pvt. B told Pvt. A that the accused told Pvt. B that he (the 
 accused) intended to desert at the first opportunity. Such testimony 
 from Pvt. A would be hearsay and would be inadmissible. 
 
 (2) A soldier is being tried for larceny of clothes from a locker. 
 Pvt. A is able to testify that Pvt. B told Pvt. A that he (Pvt. B) 
 about the time the clothes were stolen saw the accused leave the quar- 
 ters with a bundle resembling clothes. Such testimony from Pvt. A 
 would be hearsay and would be inadmissible. 
 
 (3) A soldier is being tried for selling clothing. Policeman A is 
 able to testify that, while on duty as policeman, he saw the accused 
 with a bundle under his arm go into ashop, that he (the policeman) 
 entered the shop and the accused ran away and the policeman was 
 unable to catch him. The policeman the next day asked the pro- 
 prietor of the shop what the accused was doing there, and the pro- 
 prietor replied that the accused sold him some clothes issued by the 
 Government and that he paid the accused $2.50 for them. The testi- 
 mony of the policeman as to the reply of the proprietor would be 
 hearsay and would be inadmissible. The fact that the policeman was 
 acting in the line of his duty at the time the proprietor made the 
 statement would not render the evidence admissible. 
 
 In the foregoing instances the fact that the accused said he intended 
 to desert, that the accused left the quarters with a bundle, and that 
 the accused sold the proprietor the clothes, constitute most important 
 evidence and can be proved in the first two instances by Pvt. B, and 
 
108 MANUAL FOE COTJBTS-MAETIAL. 
 
 in the third instance by the proprietor, but they can not be proved by 
 hearsay evidence. 
 
 If evidence is hearsay it does not become admissible because it was 
 made to an officer in the course of an official investigation. For in- 
 stance, in illustration (1), if Pvt. B had made his statement to Capt. 
 C in the course of an official investigation by Capt. C, the statement 
 would still be hearsay and inadmissible. 
 
 Official statements and opinions as to either guilt or innocence 
 expressed by an officer, as, for instance, a company, regimental, or 
 department commander, or by a staff officer, in an indorsement, is 
 not admissible in evidence by reason of its official character or the 
 rank or position of the officer making it, as it would be hearsay. Nor 
 is such a statement or opinion evidence because it is among papers 
 referred to the trial judge advocate with the charges. It would be 
 irregular to permit such statements or opinions to come to the atten- 
 tion of the court. If they «lo become known to the court they should, 
 of course, not be considered in arriving at a finding or sentence. 
 
 222. Dying declarations. — On trials for murder and manslaughter, 
 the law recognizes an exception to the rule rejecting hearsay by 
 allowing the dying declarations of the victim of the crime, in regard 
 to the circumstances which produced his condition, and especially 
 as to the person by whom the violence was committed, to be detailed 
 in evidence by one who heard them. The reason for admitting such 
 declarations where the victim believes death is impending is that 
 his belief is equal to the sanctity of an oath in causing him to tell 
 the truth. It is no objection to their admissibility that they were 
 brought out in answer to leading questions or upon urgent solicita- 
 tions addressed to him by any person or persons; and if, instead of 
 speaking, he answered the questions by intelligible signs these signs 
 may equally be testified to. Dying declarations are admissible as 
 well in favor of the accused as against him. It is to be remarked 
 that evidence of dying declarations made as such usually are under 
 circumstances of mental and physical depreciation and without being 
 subjected to the ordinary legal tests are generally to be received with 
 great caution. (Winthrop, p. 493.) 
 
 223. Res gestae. — Another exception to the hearsay rule consists of 
 the inculpatory or exculpatory declarations or statements that con- 
 stitute part of the res gestae. By the res gestae is meant the cir- 
 cumstances and occurrences substantially contemporaneous with the 
 facts at issue that explain and elucidate the character and quality 
 of such facts. Such are. threats or declarations of the accused in 
 connection with his commission of the crime that indicate his intent 
 or knowledge; declarations or exclamations of a party injured that 
 go to indicate the nature of the violence and the parties responsible ; 
 language of accomplices; cries of bystanders; facts, circumstances, 
 
EVIDENCE. 109 
 
 and declarations showing premeditation and preparation for the 
 crime. All such may be established by the testimony of persons who 
 heard the utterances, etc. All such declarations and statements must 
 be made so near in time to the principal transaction as to preclude 
 the idea of deliberate design or afterthought in making them, but 
 it is not essential that they should have been made in the presence 
 or hearing of the accused. Nor does it matter that the party mak- 
 ing them would be incompetent to testify in the case. For instance, 
 the statements of a wife under such circumstances would be admissible 
 against her husband. Where the crime committed is the culmination 
 of' a series of acts, such as in riots, etc., the res gestae rule applies 
 to all acts and declarations of the rioters and of bystanders that 
 would tend to indicate purpose, motive, etc. 
 
 For instance, the exclamation of a bystander who was witnessing 
 the building of barricades in a street: "My God, they- are getting 
 ready to resist the police ! " would be admissible as tending to indicate 
 the purpose of that transaction where the killing of certain of the 
 police resulted from a fire directed from such barricades, -though the 
 killing did not occur until the next day. The res gestae is considered 
 as an act connected with or an incident of a main transaction, and 
 not as testimony, and, as soon as it assumes the character of a narra- 
 tion, rather than a spontaneous exclamation that there is no probable 
 ground for belief was inspired by a desire to influence the case, it is 
 inadmissible as falling under the hearsay rule. The application of 
 the rule of res gestae is not limited strictly to circumstances and 
 occurrences contemporaneous with the principal facts at issue nor 
 with the transactions leading up to the principal facts but would 
 extend to a case of identification, as when, for instance, a party who 
 has seen the commission of a crime and afterwards sees the accused 
 and spontaneously identifies him by some such exclamation as 
 " There's the man that did the killing," although such statement as to 
 identification may have been made days after the principal act was 
 committed. The following examples illustrate what constitute the 
 res gestae : 
 
 Where the accused is charged with sleeping on post, and it appears 
 that the officer of the day or corporal of the guard, in searching for 
 the accused, found him sitting down with his rifle across his knees 
 and his chin on his chest, what they did and said to each other and 
 to the accused, and the accused to them, in what led up to and imme- 
 diately followed their efforts to ascertain whether or not he was 
 asleep, all constitute parts of the res gestae. 
 
 Where a soldier is charged with murder, manslaughter, of assault, 
 and the party against whom the violence is offered is another soldier, 
 and the wife of the former, while walking with the latter, exclaims, 
 "Run! here .comes my jealous husband, and he will kill you! " her 
 
110 MANUAL FOB COUETS-MARTIAL. 
 
 exclamations would be admitted as part of the res gestae. If the sol- 
 dier had then fled to his house pursued by her husband, and she had 
 followed to deter him from injuring the other party and later had 
 run from the house shouting, "My husband is 'killing Jones!" or 
 " has just killed Jones ! " her exclamations would be admissible as 
 constituting part of the res gestae. If a party in the next room had 
 heard a shot and then a voice that he recognized as Pvt. Jones's say, 
 " You shot me for revenge and nothing else," the declaration would 
 be considered as a part of the res gestae. 
 
 A liberal use of this exception may well be made. 
 
 224. Evidence of conspirators and accomplices. — In cases where several 
 persons join with a common design in committing an offense all acts 
 and statements of each of them made in furtherance of the offense 
 are admissible against each of the others. Only where the state- 
 ments of such conspirator fall within the rule laid down for admis- 
 sion of evidence as a part of the res gestae could such statements be 
 admissible for the defense. The declaration of a conspirator, how- 
 ever, made after the common design is accomplished or abandoned, 
 is not admissible against the others. Such accomplishment or aban- 
 donment, however, should be considered as extending to any acts 
 and statements in furtherance of an escape. It is immaterial whether 
 such acts or statements were made in the presence or hearing of the 
 other parties. They are binding upon all parties if they are in fur- 
 therance of the common design. Foundation must first be laid by 
 either direct or circumstantial evidence sufficient to establish prima 
 facie the fact of conspiracy between the parties, unless the judge 
 advocate states that the conspiracy will later appear from evidence 
 to be adduced. While in Federal courts and courts-martial corrobo- 
 ration of the testimony of a coconspirator, or accomplice, need not be 
 required, yet from the character of the associations formed the 
 uncorroborated testimony of a coconspirator, or accomplice, should 
 be received with great caution. 
 
 225. Confessions. — Another exception to the rule excluding hearsay 
 evidence is the rule that admits testimony as to confessions of guilt 
 made by the accused. The most common form of confession is that 
 contained in the plea of guilty made by the accused in open court 
 in answer to a charge. This is not the kind of confession referred to 
 as constituting an exception to the hearsay rule. The confessions 
 referred to are those made out of court, and to be admissible must be 
 offered in their entirety and not merely the parts disadvantageous to 
 the accused. Before a confession of the accused not made in open 
 court can be testified to the following foundations must be laid by 
 the judge advocate: 
 
 (a) There must be corroborating evidence, either direct or circum- 
 stantial, outside of the confession itself, that the crime charged has 
 
EVIDENCE. Ill 
 
 been committed. This is what is technically known as the rule 
 requiring proof of the corpus delicti/ that is, some proof of the fact 
 that the crime charged has probably been committed by some one, so 
 that there will be some corroboration of the confession. It is not 
 requisite that this outside evidence constituting proof of the corpus 
 delicti shall be sufficient to convince the court beyond a reasonable 
 doubt of the guilt of the accused, nor need it cover every element 
 contained in the charge. For instance, where desertion is charged 
 proof of absence without leave would be considered as proving the 
 corpus delicti; where the charge is that a sentinel had left his post 
 before being regularly relieved it would be sufficient to prove that 
 he was not on his post during his period of duty ; where a homicide 
 is charged the proof of the death of the person charged to have been 
 killed amounts to proof of the corpus delicti; and in cases of lar- 
 ceny and selling clothing the fact that the property alleged to have 
 been stolen or sold was missing is sufficient proof. 
 
 {h) It must be affirmatively shown that the confession was entirely 
 voluntary on the part of the accused. A confession is, in a legal 
 sense, "voluntary" when it is not induced or materially influenced 
 by hope of release or other benefit or fear of punishment or injury 
 inspired by one in authority, or, more specifically, where it is not 
 induced or influenced by words or acts, such as promises, assurances, 
 threats, harsh treatment, or the like, on the part of an official or 
 other person competent to effectuate what is promised, threatened, 
 etc., or at least believed to be thus competent by the party confessing. 
 And the reason of the rule is that where the confession is not thus 
 voluntary there is always ground to believe that it may not be true. 
 (Winthrop, p. 496.) In military cases, in view of the authority 
 and influence of superior rank, confessions made by inferiors, es- 
 pecially when ignorant or inexperienced and held in confinement 
 or close arrest, should be regarded as incompetent unless very 
 clearly shown not to have been unduly influenced. Statements, by 
 way of confession, made by an inferior under charges to a com- 
 manding officer, judge advocate, or other superior whom the accused 
 could reasonably believe capable of making good his words upon 
 even a slight assurance of relief or benefit by such superior should 
 not in general be admitted. Thus in a case where a confession was 
 made to his captain by a soldier upon being told by the former that 
 " matters would be easier for him," or " as easy as possible," if he 
 confessed, such confession was held not to have been voluntary and 
 therefore improperly admitted. And it has been similarly ruled in 
 cases of confessions made by soldiers upon assurances being held 
 out or intimidation resorted to by noncommissioned officers. (Win- 
 throp, p. 498.) But confessions made by private soldiers to 
 officers or noncommissioned officers, though not shown to have 
 
112 MANUAL FOE COURTS-MARTIAL. 
 
 been made under the influence of promises or threats, etc., should, 
 yet, in view of the military relations of the partieSj be received with 
 caution. Of course, the above principles apply to a written confes- 
 sion as well as to a verbal one. In some cases before courts-martial 
 it appears that the accused has signed a paper confessing his guilt, 
 stating in the paper that he confesses freely without hope of reward 
 or fear of punishment, etc. Such statements are not conclusive that 
 the confession was voluntary. Evidence may be introduced. If the 
 evidence shows the statement was not in fact voluntary, it should 
 not be considered by the court. 
 
 Considering, however, the relation that exists between officers and 
 enlisted men and between an investigating officer and a person whose 
 conduct is being investigated, and the obligation devolving upon an 
 investigating officer to warn the person investigated that he need 
 not answer any question that might tend to incriminate him, con- 
 fessions made by soldiers to officers or by persons under investigation 
 to investigating officers should not be received unless it is shown that 
 the accused was warned that his confession might be used against 
 him or it is shown clearly in some other manner that the confession 
 was entirely voluntary. 
 
 In view of the peculiar conditions of mind and body under which 
 accused persons are often placed when making confessions, of the 
 liability to mistake on the part of the. witnesses who repeat them when 
 oral, and of the tendency of these latter to exaggerate through a zeal 
 for conviction, evidence of confessions, unless corroborated by other 
 reliable evidence, is in general to be received with caution. Where, 
 however, a confession is explicit and deliberate as well as voluntary, 
 and, if oral, is proved by a witness or witnesses by whom it has not 
 been misunderstood and is not misrepresented, it is indeed one of 
 the strongest forms of proof known to the law (Winthrop, p. 499). 
 
 Courts should bear in mind that mere silence on the part of an 
 accused when questioned as to his supposed offense is not to. be 
 treated as a confession. 
 
 Although the confession, because not voluntary, is inadmissible, 
 yet any information given in the confession that leads to the dis- 
 covery of relevant facts will not render testimony of such facts 
 inadmissible, and it may be further shown, by way of corroboration 
 of such facts, that the discovery was either wholly or partially due 
 to the information thus obtained. 
 
 226. Admissions against interest. — Somewhat connected with the sub- 
 ject of confessions is that of declarations or admissions against one's 
 own interest. This constitutes another exception to the rule exclud- 
 ing hearsay. In many instances the accused, after the commission 
 of an offense, makes statements which fall short of a full confession 
 of guilt but do constitute important admissions as to his connection' 
 
, EVIDENCE. 113 
 
 with the offense. The rule is that such admissions if against his 
 own interest may be admitted in evidence. For instance, in a case of 
 homicide in a dance hall, if the accused when arrested made the 
 statement that he was in the hall when the homicide took place, such 
 a statement is admissible as against his interest. 
 
 Admissions against penal interests of parties other than the ac- 
 cused or those connected with him in the commission of the erime 
 charged, are not admissible as evidence. Such persons ought to be 
 summoned as witnesses and examined as to such supposed admis- 
 sions or confessions. 
 
 227. Privileged communications. — A privileged communication is one 
 that relates to matters occurring during a confidential relation, which 
 it is the public policy to protect. A witness can decline to answer a 
 question touching such a communication. The confidential relations 
 that were protected at common" law and which are met with in court- 
 martial practice are the following: 
 
 State secrets. — Communications made by informants to public offi- 
 cers engaged in the discovery of crime are privileged. The delib- 
 erations of courts and of grand and petit juries are privileged, but 
 the results of their deliberations are not privileged. Diplomatic cor- 
 respondence, and, in general, all oral or written official communi- 
 cations which, in the opinion of the President, would be detrimental 
 to the public interests, and official communications between the heads 
 of the departments of the Government and their subordinate officers 
 are privileged. Were it otherwise it would be impossible for such 
 superiors to administer effectually the public affairs with which they 
 are intrusted. 
 
 Husband and wife. — Communications between husband and wife 
 are privileged. 
 
 Attorney and client. — The testimony of the attorney, his clerk, 
 interpreter, stenographer, agent, or other employee as to communi- 
 cations between the client and the attorney, made while the relation 
 of attorney and client existed and in connection with the matter for 
 which the attorney was engaged, will not be received by a court, un- 
 less such communications clearly contemplate the commission of a 
 crime; i. e., perjury, subornation of perjury, etc. Of course, com- 
 munications prior to or subsequent to the relation are not privileged. 
 The client, but not the attorney, may waive this privilege. 
 
 Police secrets. — The privilege that extends to communications made 
 by informants to public officers engaged in the discovery of crime 
 should be given a common-sense interpretation. The public interests 
 would ordinarily be prejudiced by reason of the disclosure of such 
 communications in a case — and this might very reasonably occur 
 where, for instance, the admission of such communications would 
 70844°— 16 9 
 
114 MANUAL FOB COURTS-MARTIAL. 
 
 • 
 
 disclose the identity of parties employed for the detection of crimi- 
 nals or would endanger the party who made such communication, or 
 would injuriously affect the chances of securing such agents for the 
 detection of crime in the future. But the material interests of the 
 accused to vindicate his innocence should not be allowed to suffer 
 by reason of the exclusion of such evidence. 
 
 The purpose of the privilege, extended to communications between 
 husband and wife and attorney and client, which grows out of a 
 recognition of the public advantage that accrues from encouraging 
 free communication in such circumstances, is not disregarded by 
 allowing outside parties who overhear such privileged communica- 
 tions to testify to what they have overheard. It would not be per- 
 mitted, however, for one of the minor children of the parents, who 
 might reasonably be presumed by the parents not to understand what 
 they were talking about, to testify to communications overheard by 
 such child. 
 
 228. Privilege of wife_ and husband to testify. — At common law the 
 early rule was that neither husband nor wife is competent as a wit- 
 ness against the other, but later admitted an exception in a case of 
 bodily injury inflicted by one of them upon the other. 
 
 Certain departures have been made from the common-law rule by 
 Federal statutes and decisions of the courts which, giving considera- 
 tion to the reasons — i. e., the necessities of justice that demand relax- 
 ation of the rule in cases of bodily injury — have extended the field of 
 instances to which the necessities of justice must necessarily apply. 
 
 In any prosecution for bigamy, polygamy, or unlawful cohabita- 
 tion under any statute of the United States, the lawful husband or 
 wife of the accused shall be a competent witness, and may be called, 
 but shall not be compelled to testify in such proceedings, and shall 
 not be compelled to testify * * * without the consent of the 
 husband or wife, as the case may be. (Act of Mar. 3, 1887, 24 Stat., 
 635.) A married woman is excluded as a witness from motives of 
 public policy. (Lucas v. Brooks, 18 Wall., 436, 453. ) 
 
 Whenever, therefore, the policy or necessity of admitting her as a 
 witness against her husband is sufficiently strong to overbalance the 
 principle of public policy, upon which the general rule of exclusion is 
 based, she ought to be received as a witness. (People v. Mercein, 8 
 Paige (N. Y.), 47.) And so the wife should be permitted to testify 
 against the husband whenever she is the particular individual di- 
 rectly injured by the crime committed by her husband and the facts 
 are peculiarly within her knowledge and impossible or difficult of 
 proof by any witness other than the wife. (State (Mo.) v. Bean, 78 
 S. W., 640.) It would therefore be appropriate in such cases against 
 a husband as bodily injury of any character inflicted by him upon 
 her, bigamy, polygamy, or unlawful cohabitation, abandonment of 
 
EVIDENCE. 115 
 
 wife and children, or failure to support them, for the wife to be per- 
 mitted to testify against her husband. 
 
 The principle enunciated above as to permission of the wife to 
 testify should be extended to a husband in analogous cases. 
 
 229. Telegrams not privileged. — Neither private telegrams nor the 
 information regarding them that comes to the knowledge of telegraph 
 operators, either military or civil, are privileged. Telegraph opera- 
 tors, both military and civil, may be subpoenaed to testify before a 
 court-martial as to private telegrams, and private telegrams may 
 be brought before a court-martial by the usual process. 
 
 230. Confidential papers. — The reports of special inspections by the 
 Inspector General's Department are confidential documents and the 
 testimony taken is considered a part and parcel of such reports. 
 There is no law or regulation which requires copies' of the evidence 
 contained in these confidential reports to be furnished to officers 
 whose conduct has been under investigation. So also the reports of 
 the Judge Advocate General to the Secretary of War have always 
 been regarded as confidential communications and it has not been the 
 practice to furnish copies of them to parties outside the department 
 in the absence of special authority from the Secretary of War. If 
 the prosecution has had access to any such document, fairness re- 
 quires that the accused should have equal access to it. 
 
 231. Communications from officers or soldiers to medical officers not 
 privileged. — It is the duty of medical officers of the Army to attend 
 officers and soldiers when sick, to make the annual physical examina- 
 tion of officers, and examine recruits for enlistment, and they may 
 be specially directed to observe an officer or soldier or specially 
 to examine or attend them; such observations, examination, or at- 
 tendance would be official and the information acquired would be 
 official. While the ethics of the medical profession forbid' them to 
 divulge to unauthorized persons the information thus obtained and 
 the statements thus made to them, such information and statements 
 do not possess the character of privileged communications. If the 
 medical officer, when called as a witness before a court-martial, refuses 
 to testify to such matters, he is subject to charges under A. W. 96. 
 
 232. Communications between civilian physicians and patients not priv- 
 ileged. — Neither are the communications between civilian physician 
 and patient privileged, and the refusal of a physician to testify to 
 such communications would subject him to the prosecution provided 
 by A. W. 23. 
 
 233. Compulsory self-crimination prohibited. — The fifth amendment 
 to the Constitution of the United States provides that in a criminal 
 case the person shall not be compelled "to be a witness against 
 himself." The principle embodied in this provision applies to trials 
 by courts-martial and is not limited to the person on trial, but ex- 
 
116 MANT7AL FOR COURTS- MARTIAL. 
 
 tends to any person who may be called as a witness. A. W. 24, in 
 furtherance of this principle, provides that no witness before a mili- 
 tary court, commission, court of inquiry, or board, or before any 
 officer, military or civil, designated to take a deposition to be read in 
 evidence before a military court, commission, court of inquiry, or 
 board, shall be compelled to incriminate himself or- to answer any 
 questions which may tend to incriminate or degrade him. 
 
 The constitutional guaranty contained in the fifth amendment is 
 predicated upon the " well established and universally accepted 
 maxim of the common law that a witness shall not be compelled 
 to answer any question that tends to criminate him or to expose him 
 to criminal prosecution or to a penalty" (Rice, p. 298), nor to an- 
 swer any question not material to the.issue £hat may tend to degrade 
 him. It must be noted that this rule draws a distinction between 
 questions that tend to criminate and those that tend to degrade, the 
 protection extending in the first instance against questions whether 
 material or not, while in the second instance it extends only to ques- 
 tions which are not material to the issue. And this is not limited 
 to the main issues in the case; for instance, "as the credibility of 
 a witness is always an issue, he must, therefore, answer questions 
 which are no other way material than as affecting his credibility." 
 (Roscoe, p. 149.) 
 
 (a) Rule as to questions tending to degrade. — Where common-law 
 rules have been written into our Constitution and laws they have 
 been given the construction that attach to them under common-law 
 practice, and so the provisions of A. W. 24 must be presumed to have 
 been declaratory of the common-law protection afforded witnesses 
 and, as to questions tending to " degrade," must be accepted with 
 the distinction drawn by the common law — that is, as extending only 
 to questions, not material to the issue, that tend to " degrade." 
 
 (&) Where privilege as to self-crimination ceases. — As in the fol- 
 lowing cases the witness would not be liable to the law's punishment, 
 his privilege as to self-incrimination ceases : 
 
 Conviction and the suffering of the punishment ; acquittal, or other 
 former jeopardy; abolition of the general crime, subsequent to its 
 commission (provided the rule of criminal law thereby exonerates 
 prior offenders) ; lapse of time barring prosecution of the particular 
 offense; executive pardon for the particular offense; statutory am- 
 nesty, before or after the act, for the particular criminal act or for 
 the offender. (Wigmore, p. 3163.) 
 
 234. Privilege against self-crimination is a personal one. — The privi- 
 lege of a witness to refuse to respond to a question, the answer to 
 which may incriminate him, is a personal one, which the witness may 
 exercise or waive as he may see fit. It is not for the judge advocate 
 or accused to object to the question or to check the witness, or for 
 
EVIDENCE. 117 
 
 the court to exclude the question or direct the witness not to answer. 
 Where it appears that the witness is ignorant of his rights and that 
 the answer to a question might incriminate him, the president of the 
 court will inform him of his right to decline to make any answer 
 which might tend to incriminate him. 
 
 235. Procedure where alleged incriminating question is asked. — Where 
 the court overrules an objection made by a witness that the answer 
 t6 a question will incriminate him the witness should answer the 
 question. If he is a person subject to military law and refuses to 
 answer, charges may be preferred against him under A. W. 96. If 
 he is a civilian witness the facts should be certified to the United 
 States district atttorney by the court with a view to his prosecution 
 as provided in A. W. 23. (See A. W. 23 as to other tribunals and 
 agencies.) In any case of refusal to answer a question after the 
 court has held it to be a proper one, the refusal may be commented 
 on by the judge advocate or counsel in his remarks to the court. 
 
 As to civilians, as well as those in the military service, the national- 
 defense act (sec. 108, Act" June 3, 1916, 39 Stat., 209) provides that 
 presidents of courts-martial and summary court officers of the Na- 
 tional Guard, not in the service of the United States, shall have 
 power " to issue subpoenas and subpoenas duces tecum and to enforce 
 by attachment attendance of witnesses and production of books and 
 papers and to sentence for refusal to be sworn or to answer as pro- 
 vided in actions before civil courts." In such cases the punishment 
 would be for contempt of court. 
 
 236. Not self-crimination to require accused to submit to physical 
 examination. — " The prohibition of the fifth amendment against com- 
 pelling a man to give evidence against himself is a prohibition of the 
 use of physical or moral compulsion to extort communications from 
 him and not an exclusion of his body as evidence when it is material." 
 (Holt v. U. S., 218 U. S., 245.) In addition to this rule of general 
 application in the Federal courts it has been decided that : 
 
 When a person enlists in the military service he waives or surren- 
 ders, during the period of his enlistment, some of the rights which 
 he possessed as a citizen. He does this without compulsion, the sur- 
 render resulting from his voluntary enlistment in the military serv- 
 ice. (U. S. v. Grimley, 137 U. S., 147.) 
 
 Among other incidents of the military status to which he volun- 
 tarily submits himself is that of physical examination by proper 
 military authority such, for example, as is required by regulation 
 when he enlists in the military establishment, at which time his finger 
 and thumb prints are taken, and any marks or scars which appear 
 on any part of his body are made the subject of official record on a 
 card provided for that purpose by The Adjutant General, and the 
 right to impose, and the corresponding duty to submit to, a proper 
 
118 MANUAL FOR COUKTS-MAKTIAL. 
 
 physical examination, at the discretion and upon the order of a com-; 
 petent military superior, continues to exist so long as he remains in 
 the military service in the operation of his contract of enlistment. 
 
 The following are illustrations of what might be required without 
 violating the privilege contained in the fifth amendment: 
 
 (a) The admission of testimony as to marks and scars found upon 
 the person of a defendant, in a criminal prosecution, during a forci- 
 ble examination of him with a view to ascertaining his identity for 
 the purpose of arresting him, is not prohibited. (O'Brien v. Indiana, . 
 L. E. A., Book 9, 1890, p. 323; see also 12 Cyc, 401.) 
 
 (b) Upon the trial, a question was raised as to the identity of the 
 defendant. One witness testified that he knew the defendant, and 
 knew that he had tattoo marks (a female head and bust) on his 
 right forearm. The court thereupon compelled the defendant, 
 against his objection, to exhibit his arm, in such a manner as to show 
 the marks to the jury. (State v. Ah Chuey, alias Sam Good, 14 
 Nev., 79.) 
 
 (c) An officer also of the Army was ordered to a place for identi- 
 fication by civilian witnesses in relation to charges which were pend- 
 ing against the officer, and it was held that such an order would not 
 be in violation of the officer's privilege, as it called for no testimonial 
 communication from him. 
 
 It follows that it would be appropriate for the court to order the 
 accused to remove his clothing for the purpose of examination by the 
 court or by a surgeon who would later testify as to the results of his 
 examination and, upon refusal to obey the order, might have his 
 clothing removed by force. The accused might likewise be com- 
 pelled to try on clothing or shoes or place his bare foot in tracks, etc., 
 but where resort to extreme force would be necessary to compel com- 
 pliance in the presence of the court it would comport more with the 
 dignity of the court to have a surgeon make the examination out of 
 the presence of the court and testify as to the result of the examina- 
 tion, or to advise the accused as to the purpose of the examination and 
 to warn him that his refusal to obey would be considered as an 
 admission on his part of what was sought to be ascertained by the 
 examination. This conclusion would be quite within legal bounds as 
 to presumption of facts. 
 
 237. Manner of proving contents of writing,— A writing is the best 
 evidence of its own contents and must be introduced to prove its 
 contents. But if it has been lost or destroyed or it is otherwise satis- 
 factorily shown that the writing can not be produced, then the con- 
 tents may be proved by a copy or by oral testimony of witnesses who 
 have seen the writing. Under this rule if it is desired to prove the 
 contents of a private letter or other unofficial paper, or an official 
 paper such as a pay voucher, written claim against the Government, 
 
EVIDENCE. 119 
 
 pay roll or muster roll, company morning report, enlistment paper, 
 etc., the strict and formal method of doing so is to prove by proper 
 evidence that the writing is in fact what it purports to be, and then 
 introduce in. evidence the original or a properly authenticated copy. 
 
 In order to prove that a writing is what it purports to be, in case 
 of a private letter, the person who received the letter should testify 
 that he received it and he should identify it. Then it should be 
 proved that the signature is in the handwriting of the purported 
 writer of the letter. But in proving the genuineness of letters the 
 rule is that the arrival by mail of a reply purporting to be from the 
 addressee of a prior letter duly addressed and mailed, is sufficient evi- 
 dence of the genuineness of the reply to justify its introduction in 
 evidence. A similar rule prevails as to telegrams purporting to be 
 from the addressee of a prior telegram or telephone message. 
 
 If the writing is an official document such as a pay voucher, the 
 person having official custody should produce it in court and testify 
 that he is the custodian of the writing and that it is the pay voucher 
 of the person whose name is signed. The signature to the voucher 
 should be proved to be genuine if that is not admitted. In court- 
 martial practice the opposing party usually admits a public document 
 without requiring such strict proof. The entries in pay vouchers, 
 muster and pay rolls, company morning reports, and other public 
 records used in the Army, are open to inspection by both parties, and 
 contain numerous entries not pertaining to the case being tried. It 
 is the practice, in the absence of an objection, to prove their contents 
 by the oral testimony of a witness, usually the custodian, reading the 
 material matter in court. 
 
 When the original consists of numerous writings which can not 
 conveniently be examined by the court, and the fact to be proved is 
 the general result of the whole collection,, and that result is capable 
 of being ascertained by calculation, the calculation may be made by 
 some competent person and the result of the calculation testified to 
 by him, as, for instance, if the fact to be proved is the balance shown 
 by account books. In such case the opposite party should have access 
 to the books and papers from which the calculation is made. 
 
 It is customary for the party introducing a writing in evidence to 
 read it to the court. But unless the court directs it to be read at 
 once it may be read at any time. 
 
 Section IV. 
 DOCUMENTS. 
 
 238. Public records. — An important exception to the rule that the 
 contents of a writing must be proved by the writing itself is in the 
 case" of public records required to be preserved on file in a public 
 
120 MANUAL FOR COURTS-MARTIAL. 
 
 office, in ■which case duly authenticated copies may be admitted in 
 evidence equally with originals without first proving that the origi- 
 nals have been lost, destroyed, or their absence accounted for in some 
 other way. This exception is made necessary by the inconvenience to 
 the public business that would result if such records were removed. 
 The following order covers this exception so far as concerns records 
 and papers in the War Department and its bureaus and in military 
 offices : 
 
 Copies of any records or papers in the War Department, in any of 
 its bureaus, or in an office of any of the supply departments; or at 
 the headquarters of an army, field army, division, brigade, or regi- 
 ment; or of a territorial division, territorial department, or post, if 
 authenticated by the impressed stamp of the bureau, office, or head- 
 quarters having custody of the originals (for example, " The Adju- 
 tant General's Office, official copy"), may be admitted in evidence 
 equally with the originals thereof before any military court, commis- 
 sion, or board, or in any administrative matter under the War 
 Department. (G. O. 16, W. D., 1912.) 
 
 239. Certain official writings are evidence of facts recited therein. — 
 Where the law requires that the evidence of certain facts and events 
 shall be recorded in certain writings, the original writing containing 
 this evidence is competent, i. e., prima facie evidence of the facts and 
 events recorded in it. For instance, the original of an enlistment 
 paper, the physical examination paper, outline figure card and 
 finger-print card, and the original morning report sheet are com- 
 petent evidence of the facts recited in them. By authority of the War 
 Department order, properly authenticated copies of these papers 
 may be admitted in evidence equally with the original. (See par. 
 238.) A descriptive and assignment card, however, is not an original 
 paper. All the information it contains is compiled from other origi- 
 nal sources, and therefore it is not evidence of the facts recited in it. 
 
 240. Comparison of handwriting. — The common-law rule of evidence 
 would not permit a comparison of handwriting unless the writing 
 to be used as a standard was properly in the case for other purposes 
 than mere comparison. This rule was changed by act of Congress 
 approved February 26, 1913 (37 Stat., 683), which provides— 
 
 That in any proceeding before a court or judicial officer of the 
 United States where the genuineness of the handwriting of any per- 
 son may be involved, any admitted or proved handwriting of such 
 person shall be competent evidence as a basis for comparison by wit- 
 nesses, or by the jury, court, or officer conducting such proceeding to 
 prove or disprove such genuineness. 
 
 But before admitting such specimens of handwriting, satisfactory 
 evidence should be offered as to the genuineness of the same. 
 
EVIDENCE. 121 
 
 The rule prescribed by Congress will govern in courts-martial 
 procedure. 
 
 241. Use of memoranda. — Memoranda may be used to aid the memory 
 or to supply facts once known but now forgotten. Memoranda are 
 therefore of two sorts: First, if the witness does not actually re- 
 member the facts but relies on the memorandum exclusively (as in 
 the case of a bookkeeper using an old account book), then the wit- 
 ness must be able to guarantee that the record accurately represented 
 his knowledge and recollection at the time of its making, but it is 
 not necessary that he should himself have made the record if he can 
 state from his present recollection that it was correct when made 
 and the entries must have been made at or near the time, and the 
 recollection at such time must have been fresh as to the facts recorded. 
 Second, if the witness can actually remember the facts and merely 
 needs the memorandum to stimulate or revive his memory, or a part 
 of it, then the above limitations do not strictly apply. But the court 
 should see to it that no attempt is made to use such a paper to impose 
 a false memory on the court under guise of refreshing it. 
 
 The memorandum to be used must always, on demand, be shown 
 to the opponent for purposes of inspection and cross-examination, 
 and fairness and justice require that where a memorandum is con- 
 sulted before trial for refreshing a witness's recollection, statement 
 should be made by the judge advocate or counsel to that effect, and 
 the memorandum should be brought into court by the side whose 
 witness has so consulted it. 
 
 242. Memorandum as evidence. — Where a memorandum does not 
 serve to refresh the recollection of the witness, but he can state that it 
 was made when his memory was fresh and can give the guaranty of 
 accuracy and recollection called for by the preceding section, the 
 memorandum itself will be admissible. Where the witness's cer- 
 tainty rests on his usual habit or course of business in making mem- 
 oranda or records, it is sufficient. 
 
 243. Memorandum for refreshing recollection. — Where a witness states 
 that the memorandum to be used refreshes his recollection to the 
 extent of his now remembering the data contained therein, the 
 common rule is to have him testify as to such facts without admit- 
 ting in evidence the memorandum itself. 
 
 244. Books of account. — Entries in books of account, where such 
 books are proven to have been kept in the regular course of business, 
 and the entrant is dead, insane, out of the jurisdiction of the court, 
 or otherwise unavailable to testify, are admissible as evidence. Also 
 the lack of an entry in a series of written entries is admissible as an 
 implied statement that no events occurred of the kind that would 
 have been recorded. 
 
122 MANUAL FOE COTJRTS-MARTIAL. 
 
 Where the entrant is available to testify in court, books of account 
 will be used, just as memoranda are used for the purpose of refresh- 
 ing the recollection of the witness, and may be introduced in evidence 
 in connection with his testimony. 
 
 Where the entrant only records an oral report or written memo- 
 randum made in the regular course of business by another person 
 or persons, such other person or persons, if available, must be called 
 to testify. 
 
 The original document of entry must be produced or accounted 
 for. Where a composite entry is used, the extent to which inter- 
 mediate memoranda must be produced depends on the circumstances 
 of each case. As between ledger and daybook or other kinds, the 
 book required is that which contains the first regular and collected 
 record of the transactions. (Wigmore, sec. 1530.) 
 
 245. Maps, photographs, etc. — Maps, photographs, sketches, etc., as 
 to localities, wounds, etc., are admissible as evidence when properly 
 verified by the party that made them or when coming from official 
 sources that are a guaranty of truthfulness and accuracy. This 
 character of evidence is capable of gross misrepresentation of facts 
 and should be carefully scrutinized. Finger prints, upon such veri- 
 fication or guaranty, are admissible. 
 
 Section V. 
 EXAMINATION OF WITNESSES. 
 
 246. Witnesses examined apart from each other. — Witnesses, after 
 having been first sworn as provided in par. 134, are usually examined 
 apart from each other, no witness being allowed to be present during 
 the examination of another who is called before him. But this rule 
 is not inflexible; it is in practice subject to the discretion of the 
 court, nor is it ever so rigidly observed as to exclude the testimony 
 of a person because he has been present at the examination of other 
 witnesses. 
 
 247. Objections to competency; when made. — Any objection to the 
 witness's competency should be made before he is sworn. If his in- 
 competency should later appear, however, a valid objection should 
 be sustained. 
 
 248. Number of witnesses required. — Though there are occasional 
 dangers in trusting to a single witness, the testimony of a single 
 qualified witness to the facts in issue would suffice to sustain a con- 
 viction, except as to (1) treason, where there must be two witnesses 
 testifying credibly to the same overt act, or (2) perjury, where there 
 must be either (a) a second witness to the falsity alleged or (&) a cor- 
 roboration of a single witness by some other form of evidence. The 
 
EVIDENCE. 123 
 
 rule as to perjury does not apply, however, where the "falsity can be 
 inferred from a contradictory statement made by the accused. (Wig- 
 more's P. C, 338, 339.) For instance, where a person is charged 
 with a perjury as to facts directly disproved by documentary or 
 written testimony springing from himself, with circumstances show- 
 ing the corrupt intent; in cases where the perjury charged is con- 
 tradicted by a public record, proved to have been well known to 
 the defendant when he took the oath; and in cases where the false 
 swearing can be proved by his own letters relating to the fact sworn 
 to, or by other written testimony existing and being found in the 
 possession of a defendant and which has been treated by him as 
 containing the evidence of the fact recited in it. (U. S. v. Wood, 
 14 Pet., 430.) 
 
 (See par. 224 as to corroboration of an accomplice and see par. 225 
 as to corroboration of a confession. ) 
 
 249. Order of examination of witnesses. — While the proper and usual 
 order and sequence of examination of witnesses contemplates that the 
 witnesses for the prosecution shall be called first and then the wit- 
 nesses for the accused, and afterwards the witnesses for the prosecu- 
 tion in rebuttal of testimony brought out by the accused, and then 
 the witnesses for the accused in rebuttal of those last introduced by 
 the prosecution, and then witnesses by the court ; and that the method 
 of examining each witness shall be direct examination, cross-examina- 
 tion, redirect examination, recross-examination, and examination by 
 the court, the court may, in the interest of truth and justice, call 
 or recall witnesses, or permit their recall at any stage of the pro- 
 ceedings; it may permit material testimony to be introduced by 
 either party quite out of its regular order and place, or permit a case 
 once closed by either or both sides to be reopened for the introduction 
 of testimony previously omitted, if convinced that such testimony 
 is so material that its omission would leave the investigation incom- 
 plete. In all such cases both parties must be present, and any. testi- 
 mony thus received would be subject to cross-examination and re- 
 buttal by the party to whom it may be adverse. 
 
 250. Direct examination. — The first question to be asked each wit- 
 ness, whether called for the prosecution or defense or by the court, 
 will be, whether he knows the accused and if he does to state who he 
 is. This question is always asked by the judge advocate. The ac- 
 cused having been identified the examination of the witness is con- 
 tinued by the person calling him. All questions and answers are 
 recorded" in full, and as far as possible in the exact language of the 
 witness. If an objection is made to a question, the reason for the 
 objection will be stated. 
 
 251. Cross-examination. — In general the cross-examination must be 
 Limited to matters brought out by the direct examination of the wit- 
 
124 MANUAL FOK COUBTS-MABTIAL. 
 
 ness, but in the discretion of the court exceptions may be made to 
 this rule. As it is the purpose of the cross-examination to test the 
 credibility of the witness it is permissible to investigate the situation 
 of the witness with respect to the parties and to the subject of the 
 litigation, his interest, his motives, inclinations, and prejudices, his 
 means of obtaining a correct and certain knowledge of the facts to 
 which he bears testimony, the manner in which he has used those 
 means, his powers of discernment, memory, and description. Lead- 
 ing questions may be freely used on cross-examination. (Davis, 
 p. 285.) 
 
 252. Redirect and recross-examination. — Ordinarily the redirect ex- 
 amination will be confined to matters brought out on the cross- 
 examination, and the recross-examination will be confined to matters 
 brought out on the redirect examination. But in these matters the 
 court, in the interest of truth and justice, should be liberal in relax- 
 ing the rule., 
 
 253. Examination by the court. — The court or a member may ask 
 questions of a witness when it is apparent that the examination of 
 the witness already made has failed to bring out matters material 
 to the issues, and for the same reasons a witness may be recalled 
 or a new witness summoned by the court. 
 
 254. Leading questions. — Leading questions, that is, questions which 
 suggest the answer it is desired the witness shall make, or which, 
 embodying a material fact, are susceptible of being answered by 
 a simple yes or no, should not be asked. For example, "Did you 
 not see the accused leave his quarters with a bundle under his arm?" 
 is a leading question. In such case the question should be "Did 
 you see the accused?" If the answer is in the affirmative, add 
 "What was he doing?" Again, for example, the question, "Did 
 you hear the accused say he did not intend to come back?" would 
 be leading. The proper form of the question should be : " Did the 
 accused say anything?" If the answer is in the affirmative, add 
 " State what he said." So, where a knife is introduced in evidence 
 a witness should not be asked whether that is the knife he saw the 
 accused stab Pvt. A with, but he should be asked whether he recog- 
 nizes the knife, and if he does, where he saw it and what was done 
 with it, etc. The following are the exceptions to the rule that lead- 
 ing questions will not be asked : 
 
 (1) Leading questions may be asked on cross-examination. 
 
 (2) To abridge the proceedings, the Avitness may be led at once to 
 points on which he is to testify, and the admitted facts ire the case 
 may be recapitulated to him. The rule is therefore not applicable 
 to that part of the examination of a witness which is merely intro- 
 ductory. For example, in a desertion case where the accused admits 
 that on a certain day at a certain place he was apprehended as a 
 
EVIDENCE. 125 
 
 deserter by a policeman, the latter when on the stand may have his 
 attention directed at once to the occasion by such a question as 
 whether at a certain time and place he arrested the accused as a 
 deserter. The witness having answered the question in the affirm- 
 ative, in the next question he might properly be asked to state the de- 
 tails connected with the arrest. So in a case of disobedience of orders 
 where there is no dispute that the alleged disobedience took place 
 at a certain time and place and that it involved certain persons, 
 the witness might properly be asked whether he was present at the 
 place where and time when the accused was placed in arrest by a cer- 
 tain officer for not carrying out a certain order. The witness having 
 answered in the affirmative, he may be asked to state all the cir- 
 cumstances. 
 
 (3) When the witness appears to be hostile to the party calling him 
 or is manifestly unwilling to give evidence. 
 
 (4) When there is an erroneous statement in the testimony of the 
 witness, evidently caused by want of recollection, which a suggestion 
 may assist, as, for instance, where he misstates a date or an hour. 
 
 (5) Where, from the nature of the case, the mind of the witness 
 can not be directed to the subject of the inquiry without a particular 
 specification of it, as where he is called to contradict another witness 
 who has testified that the accused made a certain statement on a 
 certain occasion in the hearing of a number of soldiers, each of them 
 may be asked whether he heard the accused make the statement. 
 
 The court, in its discretion, would be justified in allowing liberal 
 departures from the rule. 
 
 255. Recalling of witnesses. — Where a witness is recalled to the wit- 
 ness stand he will not be sworn again, but will be reminded that he 
 has been sworn in the case and is still under oath. A failure to so 
 remind him, however, does not a_ffect the validity of the trial and 
 will not be ground for rejecting the testimony. 
 
 Section VI. 
 CREDIBILITY OF WITNESSES. . 
 
 256. What credibility consists in. — The credibility of a witness is his 
 worthiness of belief, and is determined by his character, by the acute- 
 ness of his powers of observation, the accuracy and retentiveness of 
 his memory, by his general manner in giving evidence, his relation to 
 the matter in issue, his appearance and deportment, prejudices, by 
 his general reputation for truth and veracity in the community where 
 he lives, by comparison of his testimony with other statements made 
 by him out of court, by comparison of his testimony with that of 
 others, etc. From all these the court will draw its own conclusions as 
 
126 MANUAL FOB COURTS-MARTIAL. 
 
 to the credibility of the witness, attaching only such weight to his, 
 evidence as all the facts seem to warrant. There may even be cases in 
 which the court will reject all the testimony of a witness. This may 
 be for any of the reasons set forth above. No statement will be made 
 by the court of the weight given to any testimony or the amount re- 
 jected, except as it may desire to inform the reviewing authority of 
 the reasons which have led to its findings. 
 
 257. Proof of character by general reputation. — Where impeachment 
 of a witness for bad character is undertaken it must be limited to 
 proof of his general reputation for truth and veracity in the com- 
 munity in which he lives. For a military man this would mean the 
 reputation that he bore amongst the members of his regiment or com- 
 pany, or amongst those stationed at a post and, if stationed at or 
 near a town, amongst the residents of the town. Personal observa- 
 tion as to his character is not admissible. 
 
 258. Conviction of crime. — Evidence of the conviction of any crime, 
 even by a foreign tribunal and whether felony or misdemeanor, is 
 admissible for the purpose of diminishing the credit due to his testi- 
 mony. (1 Greenleaf, sec. 376.) It is allowable to ask a witness on 
 cross-examination whether he has ever been convicted of a crime, but 
 if he denies it, proof may only be made by copy of the record of his 
 conviction. 
 
 259. Self-contradiction. — Proof may be offered of inconsistent state- 
 ments made by the witness on specific facts, but on collateral facts 
 the inconsistency can not be evidenced by calling other witnesses to 
 testify to his self -contradictory assertion. 
 
 Where, on cross-examination, a witness is questioned as to his self- 
 contradictory statements, his attention should be called to the time, 
 place, and surrounding circumstances and to the person to whom he 
 is assumed to have made the contradictory statements. 
 
 Where the contradictory statement is contained in a writing, it 
 need not be shown to the witness before questioning him about it. 
 
 260. Prejudice, bias, etc. — Prejudice, bias, relationship, etc., may be 
 shown to diminish the credibility of the witness, either by the testi- 
 mony of other witnesses or by cross-examination of the witness him- 
 self: Such matters are never regarded as collateral. 
 
 261. Credibility of accused as a witness. — If the accused testifies, his 
 credibility as a witness may be attacked on any of the grounds stated 
 in the preceding paragraphs. 
 
 262. Proof of contradictory statements out of court. — The strict rule 
 is that, before testimony can be admitted to prove that a witness has 
 made out of court statements that are in conflict with his testimony 
 in court, a foundation therefor must be laid by asking the witness 
 on cross-examination whether he has not made on a certain occasion 
 at a certain time or under certain circumstances the alleged contra- 
 
EVIDENCE. 127 
 
 dictory statement. If the witness admits making such a contradict 
 tory statement he will be permitted to explain it. If he denies mak- 
 ing it, evidence may be introduced to prove it. 
 
 Section VII. 
 DEPOSITIONS AND FORMER TESTIMONY. 
 
 263. Depositions admissible. — Depositions taken under the provision 
 of A. W. 25 and 26 "may be read in evidence before any military 
 court or commission in any case not capital or in any proceeding 
 before a court of inquiry or a military court." 
 
 264. Depositions for defense in capital eases. — Deposition testimony 
 may be adduced for the defense in capital cases. (A. W. 26.) Where 
 the defense calls for such testimony in capital cases the witnesses may 
 be cross-examined as fully as witnesses in a case not capital. 
 
 265. Objections as to competency of witness and admissibility of evi- 
 dence. — The same rules as to competency of witnesses and admis- 
 sibility of evidence apply in the taking of evidence by deposition 
 that apply in the examination of a witness before the court, except 
 that a wider latitude than usual should be allowed as to leading 
 questions. 
 
 If the interrogatories and cross-interrogatories for depositions are 
 prepared for acceptance by the court, in open session, objection to 
 the competency of the deponent, if grounds of objection are known 
 at the time, as well as objections to questions, should be raised at 
 such session, and ordinarily be passed upon by the court at that time. 
 The court should, however, in the interests of justice, entertain such 
 objections when the depositions are offered in evidence, but might 
 in a proper case call upon judge advocate or counsel for explanation 
 as to why they had failed to make the objection at the proper time. . 
 
 If the interrogatories and cross- interrogatories are agreed upon by 
 both parties in advance of the assembling of the court — and this is 
 the usual practice — objections to questions and to the admissibility 
 of evidence will be made when the depositions are offered in evidence. 
 
 266. Examination of deposition by counsel. — Upon receipt of the 
 deposition the judge advocate will advise the accused or his counsel of 
 that fact and will give them an opportunity to examine the deposi- 
 tion before the trial. 
 
 267. Reading of depositions. — Ordinarily depositions will be read to 
 the court by the party in whose behalf they are taken, but if the 
 accused is not represented by counsel the judge advocate will read 
 to the court the deposition taken on his behalf, unless the accused 
 requests to read them. After being read to the court a deposition 
 
128 MANUAL FOE COTTBTS-MAETIAL. 
 
 will be properly marked for identification purposes and attached 
 to the record, and the record will show that it has been introduced 
 and read to the court. 
 
 268. Miscellaneous provisions as to depositions. — The party at whose 
 instance a deposition has been taken should not be permitted to 
 introduce only such parts of the deposition as are favorable to him 
 or as he may elect to use; he must offer the deposition in evidence 
 as a whole or not offer it at all. If the party at whose instance a 
 deposition has been taken decides not to put it in, it may be put in 
 evidence by the other party. 
 
 269. Affidavits not admissible. — Affidavits taken without notice and 
 not as depositions under the provisions of A. W. 25 and 26 are in no 
 case admissible as evidence unless expressly consented to by the judge 
 advocate and the accused with full knowledge of his rights. 
 
 270. Certificate of discharge. — The " certificate of discharge " may be 
 used by the defense, either before or after the findings, for proof of 
 good character. 
 
 271. Statement of service. — The statement of service and number of 
 previous convictions of the accused, as fou.id in the upper quarter 
 of the front page of the charge sheet, will not be permitted to be seen 
 or examined by members of the general or special court-martial try- 
 ing a soldier until after they have reached their findings. In the 
 event of conviction the accused, if a soldier, will be asked whether 
 such statement of service is correct, and such statement will be 
 examined and considered by the court for the purpose of determining 
 proper punishment in view of length of service. 
 
 The statement of service may be used by the defense, either before 
 or after the findings, for proof of good character. 
 
 272. Former testimony before court of inquiry. — The record of the 
 proceedings of a court of inquiry may be read in evidence before any 
 court-martial or military commission in any case not capital nor 
 extending to the dismissal of an officer, and may also be read in evi- 
 dence in any proceeding before a court of inquiry or a military 
 board : Provided, That such evidence may be adduced by the defense 
 in capital cases or cases extending to the dismissal of ah officer. 
 (A. W. 27.) 
 
 The ends of justice would require that the reasonable tests for 
 admissibility laid down in par. 275, as to examination and cross- 
 examination on the same issues and as to correctness and complete- 
 ness of the record where former testimony before civil courts and 
 courts-martial is offered, should be applied as to the admission of 
 the record of a court of inquiry. 
 
 273. Evidence of pardon. — When a special plea in bar of trial, based 
 on a pardon, is offered by the defense, the best evidence of such par- 
 don, if in the nature of an individual pardon, will be the document 
 
EVIDENCE. 1'29 
 
 signed by the President himself, and, if in the nature of a general 
 amnesty, by an official copy of the proclamation or order publishing 
 such amnesty. If such document or order is not sufficiently explicit 
 to determine whether or not the offense for which the accused is on 
 trial is the same as that covered by the pardon, then other evidence 
 must be introduced to fill the gap. Where the pardon is in the nature 
 of a constructive pardon, the evidence will be of such facts and cir- 
 cumstances as it is contended constitute such pardon. 
 
 274. Evidence of former trial by court-martial or civil court. — "Where 
 a plea in bar of trial, based on a former trial by court-martial for 
 the same offense and conviction or acquittal of the same is offered 
 for the defense the best evidence of such conviction or acquittal will 
 be the order of the reviewing authority publishing the case. Where 
 such order is not sufficiently explicit to determine whether or *iot the 
 offense for which the accused is on trial is the same as that the con- 
 viction or acquittal of which he pleads in bar, then the original court- 
 martial record should be offered in evidence. 
 
 Where a plea in bar is on a former trial and conviction or acquittal 
 by a Federal court — the action of a State or any other than a Federal 
 court does not operate as a bar to second trial — the best evidence of 
 such conviction or acquittal will be a duly certified copy of the in- 
 dictment and findings and conviction or acquittal, given by the pub- 
 lic officer whose duty it is to keep the original. 
 
 275. Former testimony in civil courts and courts-martial. — Where a 
 witness, who has testified in either a Federal or State court at a 
 former trial on the same issues raised in the case on trial and was 
 fully examined and cross-examined, is dead or is beyond the reach 
 of the process of the court and his personal attendance can not be 
 secured, then the stenographic report of his testimony, if proven to 
 be correct and complete by the person by whom it was reported, will 
 be admissible and may very properly be accorded the same weight as 
 a deposition duly taken on notice. (Chicago, St. P., M. & O. By. Co. v. 
 Myers, 80 Fed. Rep. 361, 365.) Ordinarily, however, this situation 
 should be met by the judge advocate and counsel for accused procur- 
 ing in advance of trial a transcript of the stenographer's notes, duly 
 sworn to by him as correct and complete, and submitting it to the 
 opposite party for his inspection. If acknowledged to be correct and 
 complete, then such transcript will be received in evidence. 
 
 Where the testimony desired is of a witness who had testified in a 
 former trial by court-martial, all conditions being approximately the 
 same as those cited in the first paragraph of this section, the original 
 court-martial record itself will be admissible, and the stenographic 
 reporter will only be called where a question is raised as to the cor- 
 rectness or completeness of the recorded testimony. 
 70844°— 16 10* 
 
130 MANUAL FOR COURTS-MARTIAL. 
 
 Section VIII. 
 PRESUMPTIONS. 
 
 276. Presumptions. — Presumptions constitute a large part of the 
 law of evidence. They are of two kinds — presumptions of law and 
 presumptions of fact. 
 
 277. Presumptions of law. — Broadly speaking, a presumption of law 
 is a rule of law that when certain circumstances exist the court must 
 presume certain other circumstances. Presumptions of law are di- 
 vided into conclusive and disputable presumptions. In case of a con- 
 clusive presumption of law the presumption can not be contradicted. 
 For example, all residents of a country are conclusively presumed to 
 know its laws. This presumption is in force in the practice of 
 courts-martial so far as concerns offenses that constitute civil crimes. 
 (As to the modification of the rule as regards knowledge of the 
 Articles of War in case of recruits, see par. 282 ; as to intent, par 281 ; 
 as to ignorance of law, par. 282. ) In case of a disputable presumption 
 of law, the presumption can be contradicted. For example, it is 
 presumed that a sane person intends the natural and probable conse- 
 quences of his acts ; a person is presumed to be innocent until proven 
 guilty ; all persons are presumed to be sane ; persons acting as public 
 officers are presumed to be legally in office and to properly perform 
 their duties; and malice is presumed from the use of a deadly 
 weapon. Evidence may be introduced to rebut such presumptions. 
 
 278. Presumptions of fact. — Presumptions of fact are nothing more 
 than logical inferences, from facts already proved, as to the existence 
 of other facts. This kind of a presumption is not made as a rule of 
 law but as a matter of human reason. All evidence in a case, ex- 
 cept that which directly proves the allegations in the specifications, 
 leads at once to presumptions of fact. Such presumptions are the 
 basis of all circumstantial evidence. (See par. 204.) It is in mak- 
 ing such presumptions that the members of the court should espe- 
 cially exercise their common sense and their knowledge of human 
 nature and the ways of the world. Facts in evidence showing a 
 motive or absence of motive on the part of the accused, preparations 
 or the absence of preparations for the commission of crime, a failure 
 to account for suspicious circumstances, acts showing a criminal con- 
 sciousness (as concealment, disguise, or flight), the suppression of 
 evidence, the possession of weapons or instruments that might have 
 been used in the commission of the offense, the possession soon after 
 larceny or embezzlement of the articles stolen or embezzled, are a 
 proper basis for presumptions of fact. 
 
 Also where the existence at one time of a certain condition or state 
 of things of a continuing nature is shown, the general presumption 
 arises that such condition or state continues to exist, until the con- 
 
EVIDENCE. 131 
 
 trary is shown, so long as is usual with conditions or thmgs of that 
 particular nature. For example, there is a presumption of continu- 
 ance as to one's residence, until a change is shown, also that one 
 holding an office continues to hold it until the end of the term for 
 which appointed or elected and that personal habits have not 
 changed. There is a presumption of fact from the regular course 
 of business in the Post Office Department that a letter when properly 
 deposited in a post-office box or in the place in which letters for mail- 
 ing are usually deposited, postage prepaid, is received by the ad- 
 dressee. The presumption with regard to the delivery of letters 
 duly posted has been extended and applied to the delivery of tele- 
 grams deposited with a telegraph company for transmission; but 
 delivery of the message to the telegraph company must of course 
 be shown. There is also a presumption of fact that persons of the 
 same name are the same person. The strength of this presumption 
 will of course depend upon how common the name is and other cir- 
 cumstances. 
 
 279. Prima facie evidence. — Prima facie evidence is that which suf- 
 fices for the proof of a particular fact until contradicted and over- 
 come by other evidence. In other words, prima facie evidence justi- 
 fies the court in finding the facts presumed, but in view of the doc- 
 trine of reasonable doubt that always inures to the benefit of the 
 accused from a consideration of all of the evidence presented the 
 court is not required to find the facts presumed. The court may 
 decide, for instance, that the prima facie evidence presented does 
 not outweigh the presumption of innocence. 
 
 280. Intent in connection with crimes. — In respect to the element of 
 intent, crimes are distinguished as follows: Those in which a dis- 
 tinct and specific intent, independent of the mere act, is essential 
 to constitute the offense, as murder, larceny, burglary, desertion, and 
 mutiny ; and those in which the act is the principal feature, the exist- 
 ence of the wrongful intent being simply inferable therefrom, as 
 rape, perjury, sleeping on post, drunkenness on duty, neglect of 
 duty. In cases of the former class the characteristic intent must be 
 established affirmatively as a separate fact; in the latter class of 
 cases it is only necessary to prove the unlawful act, for every man 
 is presumed in law to have intended to do what he actually does, 
 and the burden of proof is upon him to show the contrary. (Win- 
 throp, p. 475.) 
 
 281. Intent in military cases. — Military offenses being created by 
 statute, the peculiar statutory intent described in the article, if 
 there be one, must be alleged in the specification. The enlistments 
 prohibited in A. W. 54, for example, must have been " knowingly " 
 made in order to constitute an offense under the statute. It is simi- 
 larly essential to some of the offenses described in A. W. 55, 56, and 
 
132 MANUAL FOR COURTS-MARTIAL. 
 
 57 that they be " knowingly " committed ; offenses under A. W. 83 
 and 84 must have been committed " willfully " or " through neglect " ; 
 an officer quitting his post on tender of resignation must do so " with 
 intent to absent himself permanently therefrom" to be triable for 
 the offense described in A. W. 28; and an officer who refuses or 
 "willfully neglects" to deliver an offender to the civil authorities 
 upon application duly made by such authorities subjects himself 
 by such refusal or willful neglect to the penalties set forth in 
 A. W. 74. (Davis, 642.) In some instances, however, as in the 
 offenses described in A. W. 61 and 86, no statutory intent is set 
 forth in the article, and none need be alleged in the specifica- 
 tions. In other cases, while no intent is embodied in the article, a 
 particular intent is necessary to the completeness of the offense, and 
 though not set forth in the specification must be established in evi- 
 dence. Such is the case with respect to the offense of desertion, the 
 intent being not to return. But whether the intent that is presumed 
 from the commission of an unlawful act or the specific one that must 
 be proved raises a point in issue the accused in his defense may prove 
 there was actually no intent. If the accused can substantiate such 
 a defense, he must be acquitted or the grade of the offense reduced, 
 as, for instance, from assault with intent to kill to assault. The usual 
 defenses of this character in military practice are ignorance of mili- 
 tary law, ignorance of fact, drunkenness, and insanity. 
 
 282. Ignorance of law. — Every person is usually presumed to know 
 the provisions of Federal, State, and municipal law applicable to the 
 community in which he lives, and a person subject to military law 
 is presumed, in addition thereto, to know the statute law as particu- 
 larly applicable to the Army, as well as Army regulations, the differ- 
 ent manuals, orders, and circulars issued for the information and 
 government of the Army. This really means that on grounds of 
 public policy a person is responsible whether he knows the law or 
 not. His ignorance is immaterial. 
 
 An exception may sometimes be made where enlisted men are 
 charged with the knowledge of the Articles of War. This exception 
 would be based primarily upon the fact that A. W. 110 makes it one 
 of the features of enlistments into the military service that certain 
 of the "Articles of War shall be read to every enlisted man at the 
 time of, or within six days after, his enlistment." A. W. 109 enjoins 
 that he shall take an enlistment oath in which, among other things, 
 he swears that he will observe and obey military orders " according 
 to the rules and Articles of War." While in the case of an old or 
 reenlisted soldier, or one who had been for a considerable period in 
 the service and had had a sufficient opportunity to inform himself as 
 to the provisions of the code, a failure to have complied with the 
 injunction of this article could scarcely constitute a defense, such 
 
EVIDENCE. 133 
 
 failure might perhaps have this effect, or should usually at least act 
 as an extenuation in the case of a recruit, especially one imperfectly 
 acquainted with the English language. In such a case it would cer- 
 tainly be admissible for the accused to show the fact, and if the 
 offense charged was one of the criminality of which he could not, 
 in his ignorance of military law, have been aware, or the gravity of 
 which he could not have appreciated, the omission of the reading of 
 the articles upon his enlistment would properly be regarded by the 
 court, if not as a defense, certainly as a palliation of his misconduct. 
 (Winthrop, p. 438.) 
 
 283. Ignorance of fact. — It is generally laid down that ignorance of 
 fact excuses crime. But this must be an honest or innocent ignor- 
 ance and not an ignorance which is the result of carelessness or fault. 
 The theory, of course, is that where a bona fide ignorance of fact 
 exists there would be an absence of the requisite wrongful intent. 
 The general rule applies equally to military cases, and the ignorance, 
 to constitute a defense therein, must appear not to have proceeded 
 from any want of vigilance, or from failure to make the inquiries or 
 obtain the information reasonably called for by the obligations and 
 usages of the service. Thus a soldier who neglects to report for 
 guard or other duty because ignorant of the fact that he has been 
 duly detailed therefor is not guilty of a breach of A. W. 61 unless 
 his ignorance is a result of his own neglect or wrongdoing (Win- 
 throp, p. 436) ; and if the soldier should disobey an order given to 
 him by an officer in civilian clothing without the officer having first 
 stated to the soldier that he was an officer, where the soldier did not 
 know that he was an officer nor have reason to believe that he was 
 an officer, then his ignorance would be excuse for his act of diso- 
 bedience which might otherwise have been a very serious offense. Of 
 course, a soldier is presumed — it is his duty — to know the officers of 
 his command where reasonable time and opportunity after joining 
 the command are shown to have existed for this purpose. 
 
 [Note. — See Insanity of accused, par. 219.] 
 
 284. Evidence of desertion. — Absence without leave is usually proved 
 by the evidence of an officer or noncommissioned officer of the com- 
 pany of the accused to the effect that he was absent from his organi- 
 zation without authority for a certain period, but if such witnesses 
 are not available it may be proved by the entries on the muster rolls. 
 In making the latter kind of proof, that portion of the muster roll 
 relating to the accused, or a copy of it certified by the officer having 
 official custody thereof, showing the accused was absent without 
 leave, beginning a certain date, and (if such is the case) was dropped 
 as a deserter, should be attached to the proceedings as an exhibit. 
 But the muster roll, even though it refers to the accused as a " de- 
 serter," is not complete evidence of desertion ; it is evidence only of 
 
134 MANUAL FOB COTTBTS-MABTIAL. 
 
 absence without leave, and it is still necessary for the judge advocate 
 to prove an intent to remain permanently absent; that is, to desert. 
 
 The condition of absence without leave having once been shown to 
 exist will be presumed to continue in the absence of evidence to the 
 contrary until the accused came again under military control. It is 
 therefore necessary to prove only that the accused went absent with- 
 out leave a certain date and came under military control a certain 
 date. During the intermediate time it is presumed he was absent 
 without leave. 
 
 If the condition of absence without leave is much prolonged, and 
 there is no satisfactory explanation of it, the court may be justified 
 in presuming from that alone an intent to remain permanently ab- 
 sent. The presumption of such intent will be strengthened by such 
 circumstances as that the accused attempted to dispose of his uni- 
 form or other property ; that substantially all his clothes were miss- 
 ing from his locker when his absence was discovered ; that his civilian 
 clothes were missing; that he attempted to board a train that took 
 him away from his station ; that he purchased a ticket for a distant 
 point or was arrested or surrendered at a considerable distance from 
 his station ; that while absent he was in the neighborhood of military 
 posts and did not surrender to the military authorities; that he was 
 dissatisfied in his company or with the military service ; that he had 
 made remarks indicating an intention to desert the service; that he 
 was under charges or had escaped from confinement at the time he 
 absented himself; that just previous to absenting himself he stole 
 or took without authority money, civilian clothes, or other property 
 that would assist him in getting away,, etc. 
 
 On the other hand, such incidents are not always inconsistent with 
 a guilt of mere absence without leave. They should be carefully 
 weighed by the court. Previous excellent and long service, the fact 
 that none of the property of the accused was missing from his locker, 
 and the fact that he was under the influence of intoxicating liquor 
 or drugs when he absented himself, and that he continued for some 
 time under their influence, etc., are incidents going to show there was 
 not an intent to remain permanently absent. 
 
 The fact that a reward has been paid for the apprehension of the 
 accused as a deserter neither proves nor disproves an intent to desert. 
 So also the opinions of witnesses as to whether the accused intended 
 to desert and statements from them that the accused is a " deserter " or 
 " deserted " are not only incompetent, but are valueless for any 
 purpose to prove desertion. 
 
 (a) Statutory rides of evidence. — A. W. 28 provides that it shall be 
 sufficient proof of the offense of desertion "by an officer that, having 
 tendered his resignation and prior to due notice of the acceptance of 
 the same, he quits his post or proper duties without leave and with 
 intent to absent himself permanently therefrom. And similarly in 
 
EVIDENCE. 135 
 
 the case of a soldier, A. W. 29 provides that it shall be sufficient proof 
 of desertion in his case when it is proved that, without having first 
 received a regular discharge, he again enlists in the Army or in the 
 militia when in the service of the United States, or in the Navy or 
 Marine Corps of the United States, or in any foreign army ; and shall 
 be further proof of fraudulent enlistment where the enlistment is in 
 one of the forces of the United States mentioned above. 
 
 285. Drunkenness as showing absence of intent. — It is a general rule 
 of law that voluntary drunkenness is not an excuse for crime com- 
 mitted in that condition. But the question whether or not the ac- 
 cused was drunk at the time of the commission of the criminal act 
 may be material as going to indicate what species or kind of offense 
 was actually committed. Thus, there are crimes which can be con- 
 summated only where a peculiar and distinctive intent or a conscious 
 deliberation or premeditation has concurred with the act which could 
 not well be possessed or entertained by an intoxicated person. In 
 such cases evidence of the drunken condition of the party at the time 
 of the commission of the alleged crime is held admissible, not to 
 excuse or extenuate the act as such, but to aid in determining whether, 
 in view of the state of his mind, such act amounted to the specific 
 crime charged or which of two or more crimes similar but distin- 
 guished in degree it really was in law. Thus, in cases of such offenses 
 as larceny, robbery, burglary, and passing counterfeit money, which 
 require for their commission a certain specific intent, evidence of 
 drunkenness is admissible as indicating whether the offender was 
 capable of entertaining this intent or whether his act was anything 
 more than a mere battery, trespass, or mistake. So, upon an indict- 
 ment for murder, testimony as to the drunkenness of the accused at 
 the time of the killing may ordinarily be admitted as indicating a 
 mental excitement, confusion, or unconsciousness incompatible under 
 the circumstances of the case with premeditation or a deliberate in- 
 tent to take life and as reducing the crime to the grade of man- 
 slaughter. On the other hand, where, to constitute the legal crime, 
 there is required no peculiar intent — no wrongful intent other than 
 that inferable from the act itself — as in cases of assault and battery, 
 rape, or arson, evidence that the offender was intoxicated would, 
 strictly, not be admissible in defense. (Winthrop, p. 440.) 
 
 Where drunkenness is pleaded as an excuse for crime such excuse 
 should be received with caution. Drunkenness is easily simulated. 
 It is sometimes resorted to for the purpose of stimulating the nerves 
 to the point of committing the act. Where premiditation and intent 
 first exist, followed by voluntary drunkenness and the commission 
 of the crime during such state of drunkenness, the necessary intent 
 to commit the crime will be presumed, whatever the state of drunk- 
 enness at the time of its commission may have been. 
 
136 MANUAL FOR COURTS-MARTIAL. 
 
 286. Drunkenness in military cases. — In military cases, the fact of 
 the drunkenness of the accused, as indicating his state of mind at 
 the time of the alleged offense, whether it may be considered as 
 properly affecting the issue to be tried, or only the measure of 
 punishment to be adjudged in the event of conviction, is in practice 
 always admitted in evidence. And where a deliberate purpose or 
 specific intent is necessary to constitute the offense, as in cases of dis- 
 obedience of orders in violation of A. W. 64, desertion, mutiny, 
 cowardice, or fraud in violation of A. W. 94, the drunkenness, if 
 clearly shown in evidence to have been such as to have incapacitated 
 the party from entertaining such purpose or intent, will ordinarily 
 be treated as constituting a legal defense to the specific act charged. 
 
 In such cases, however, if the drunken act has involved a disorder 
 or neglect of duty prejudicial to good order and military discipline 
 the accused may be convicted of that offense under A. W. 96. (Win- 
 throp, p. 441.) 
 
 287. Proof of drunkenness. — Upon a trial for drunkenness it is not 
 essential to confine the testimony to a description of the conduct and 
 demeanor of the accused, but it is admissible to ask a witness directly 
 if the accused " was drunk," or for a witness to state that the accused 
 ''was drunk," on the occasion or under the circumstances charged. 
 Such a statement is not viewed by the authorities as of the class of 
 expressions of opinion which are properly ruled out on objection 
 unless given by experts, but as a mere statement of a matter of 
 observation, palpable to persons in general, and so, proper to be 
 given by any witness as a fact in his knowledge. It is preferable 
 that all witnesses introduced to prove drunkenness should describe 
 the conduct and demeanor of the accused in addition to giving their 
 opinion as to whether the accused was drunk. 
 
 288. Reasonable doubt and burden of proof. — In order to convict, the 
 court must be satisfied, beyond a reasonable doubt, that the accused 
 is guilty as charged. 
 
 By " reasonable doubt " is intended not fanciful or ingenius doubt 
 or conjecture but substantial, honest, conscientious doubt suggested 
 by the material evidence in the case. It is an honest, substantial mis- 
 giving, generated by insufficiency of proof. It is not a captious 
 doubt, nor a doubt suggested by the ingenuity of counsel or jury 
 and unwarranted by the testimony ; nor is it a doubt born of a merci- 
 ful inclination to permit the defendant to escape conviction, nor 
 prompted by sympathy for him or those connected with him. The 
 meaning of the rule is that the proof must be such as to exclude not 
 every hypothesis or possibility of innocence* but any fair and rational 
 hypothesis except that of guilt; what is required being not an abso- 
 lute or mathematical but a moral certainty. A court-martial which 
 acquits because, upon the evidence, the accused may possibly be inno- 
 
EVIDENCE. 137 
 
 cent falls as far short of appreciating the proper amount of proof 
 required in a criminal trial as d*oes a court which convicts because 
 the accused is probably guilty. (Winthrop, p. 476.) 
 
 In trials before courts-martial the prosecution has upon it the 
 burden of proving the guilt of the accused beyond a reasonable doubt, 
 and, whatever the defense of the accused may be, this burden never 
 changes. After the evidence is all in the court must be convinced 
 beyond a reasonable doubt of every element necessary to constitute 
 the offense in order to justify it in convicting the accused of the 
 offense charged. 
 
 In collateral issues arising in the course of the trial as to the com- 
 petency of witnesses, the admissibility of testimony, and the like, the 
 burden of proof rests upon the party who alleges incompetency or 
 objects to the admission of particular testimony. (Davis, p. 267.) 
 
 Section IX. 
 
 JUDICIAL NOTICE. 
 
 289. Judicial notice. — Courts will recognize the existence and truth 
 of certain matters bearing upon the issue before them of their own 
 motion and without requiring the production of evidence. Such 
 acceptance is known as "taking judicial notice" of them. This is 
 done as to all matters of law and all facts which are so notorious 
 as to need no evidence. To the former class belong the laws which 
 the court applies in the decision of the cases before it, including 
 the Constitution, laws, and treaties of the United States, those of 
 the State in which it sits, the common law, and the law of nations. 
 They also take notice of the great seal of the United States, those 
 of the several States, the seal of courts of record, notaries public, 
 etc. Under the latter head they will take judicial notice of the 
 ordinary divisions of time, of calendar and lunar months, of weeks 
 and days, and of the hours of the day ; of astronomical and physical 
 facts; of the laws of nature, including their ordinary operations 
 and consequences ; of the Government of the United States and those 
 of the several States and their heads; of war and peace; and of the 
 great facts of history as recorded in the works of writers of stand- 
 ard authority. So in addition all courts-martial will take judicial 
 notice of the organization of the Army, the statutes relating to the 
 Army, the Army Regulations, the contents of the several manuals 
 issued, the existence and situation of military departments, reserva- 
 tions, and posts, and the stations of troops as published to the Army, 
 the fact that an officer belongs to a certain organization, etc. Gen- 
 eral and special orders, general court-martial orders, and bulletins 
 of the War Department and the headquarters of the several military 
 departments may ordinarily be proved by printed official copies in 
 
138 MANUAL FOR COURTS-MARTIAL. 
 
 the usual form. A court-martial will in general properly take 
 judicial notice of the printed order *as genuine and correct. A court- 
 martial, however, should not in general accept in evidence, if objected 
 to, a printed or written order which has not been made public to 
 the Army without some proof of its genuineness and official char- 
 acter. Special and summary courts will take judicial notice of the 
 published orders of the regimental and post commander. Where the 
 price of an article furnished by the Government is published to the 
 Army in orders, bulletins, or price lists, it will not be necessary to 
 prove the price, as the court will take judicial notice of it. It is 
 proper, although not necessary, for the judge advocate to state to 
 the court that the price as set out in the charges is the same as that 
 fixed by the order, bulletin, or price list. If the court is uncertain 
 as to the fact which it is called upon to notice judicially, it may 
 refer to any person or to any document or book of reference to 
 satisfy itself with regard thereto, or it may refuse to take judicial 
 notice of the fact unless and until the party calling upon it to do so 
 shall produce such document or book of reference. 
 
CHAPTER XII. 
 
 COURTS-MARTIAL— CONCLUDING INCIDENTS OF THE 
 
 TRIAL. 
 
 Section I: Statements and arguments: Page. 
 
 290. Scope of statement 140 
 
 291. Freedom of expression 140 
 
 292. Admissions 140 
 
 293. Arguments 141 
 
 Section II: Findings: 
 
 294. Voting 141 
 
 295. Majority necessary to convict — Exception 141 
 
 296. Reasonable doubt 141 
 
 297. General principles controlling findings 141 
 
 298. Guilty of a lesser included offense 142 
 
 299. Guilty with exceptions and substitutions 142 
 
 300. Substitution of general for specific article in the charge 143 
 
 301. Joint charges 143 
 
 302. Reasons for findings 143 
 
 303. Findings where no criminality is involved 143 
 
 304. Findings under charge of drunkenness '. . . 143 
 
 305. Recording of finding or sentence by reporter 144 
 
 Section III: Previous convictions: 
 
 306. Procedure as to previous convictions 144 
 
 307. Character of previous convictions 144 
 
 Section IV: Sentences: 
 
 308. Voting. 145 
 
 309. Mandatory and discretionary punishments 145 
 
 310 . Sentences for officers 146 
 
 311. Sentences for soldiers 146 
 
 312. Dismissal 146 
 
 313. Loss of rank 146 
 
 314. Suspension from rank 147 
 
 315. Suspension from command , 147 
 
 316. Suspension from duty ' 147 
 
 317. Fine 147 
 
 318. Reprimand 147 
 
 319. Confinement to limits of post or reservation 147 
 
 320. Dishonorable discharge 148 
 
 321. Suspension of dishonorable discharge 148 
 
 322. Confinement at hard labor 148 
 
 323. Hard labor without confinement 148 
 
 324. Forfeiture of pay and allowances 148 
 
 325. Courts can not stop pay in favor of Government or an individual 148 
 
 326. Forfeiture of deposits 149 
 
 139 
 
140 MANUAL FOB COTJETS-MABTIAL. 
 
 Section IV: Sentences — Continued. Page. 
 
 327. Reduction of noncommissioned officer 149 
 
 328. Detention of pay 149 
 
 329. When reward for apprehending deserter not to be stopped 149 
 
 330. Sentences of general prisoners. 149 
 
 331. Reasons for sentence 149 
 
 332. Recommendations to clemency 149 
 
 Section I. 
 STATEMENTS AND ARGUMENTS. 
 
 290. Scope of statement. — Af ter the introduction of evidence has been 
 completed the accused, personally or by counsel, and whether or not 
 he has testified as a witness, may make an unsworn verbal or written 
 statement as to the case. If the statement is in writing it should be 
 signed by the accused, or by counsel in his behalf, and appended to the 
 record. The statement may consist of a brief summary or version of 
 the evidence, with such explanation or allegation of motive, excuse, 
 matter of extenuation, etc., as the party may desire to offer, or it may 
 embrace, with the facts, a presentation also of the law of the case 
 and an argument both upon the facts and the law. (Winthrop, p. 
 450.) Such statement is not testimony and, therefore, is not subject 
 to cross-examination, but as a personal defense or argument, how- 
 ever, it may and properly should be taken into consideration by the 
 court. (Digest, p. 506 V, H, 1.) 
 
 291. Freedom of expression. — A large freedom of expression in his 
 statement to the court is allowable to an accused, especially in his 
 comments upon the evidence. So, an accused may be permitted to 
 reflect within reasonable limits upon the apparent animus of his 
 accuser or prosecutor, though a superior officer and of high rank. 
 But an attack upon such a superior of a personal character and not 
 apposite to the facts of the case is not legitimate ; nor is language of 
 marked disrespect employed toward the court. Matter of this de- 
 scription may indeed be required by the court to be omitted by the 
 accused as a condition to his continuing his address or filing it with 
 the record. (Digest, p. 506, V, H, 3.) 
 
 292. Admissions. — While the statement proper can not, as previously 
 stated, be regarded as evidence, and the accused is not in general 
 to be held bound by the argumentative declarations it contains, yet 
 if he clearly and unequivocally admits in his statement certain facta 
 material to the prosecution, such may properly be viewed by the 
 court and reviewing authority in the case. Such facts must, of course, 
 not be inconsistent with the plea. But admissions of this sort can 
 
COURTS-MARTIAL — CONCLUDING INCIDENTS OF THE TRIAL. 141 
 
 scarcely in any event constitute a sufficient basis for a conviction un- 
 less supported by material testimony on the trial. 
 
 [Note. — See Chap. IX, par. 154, as to procedure where, after a plea of guilty, 
 the accused makes a statement Inconsistent with his plea.] 
 
 293. Arguments. — After the accused has made a statement, if any, 
 arguments may be presented to the court by the judge advocate, the 
 accused, and his counsel. The judge advocate has the right to make 
 the opening and closing argument, but the court, in its discretion, 
 may permit the defense to answer any new matter in the closing 
 argument of the judge advocate. 
 
 Section II. 
 
 FINDINGS. 
 
 294. Voting. — After the statements and arguments, if any are made, 
 have been concluded the court will proceed to its judgment which 
 consists of the findings and sentence. Members of a general or spe- 
 cial court-martial, in giving their votes, shall begin with the junior 
 in rank. (A. W. 31.) The votes of the members must be based upon 
 and governed by the testimony in the case considered in connection 
 with the plea. The charges and specifications are voted upon in the 
 same order that is followed in arraigning the accused, the first speci- 
 fication to the first charge being voted upon, then the second, third, 
 and thereafter in order, followed by a vote upon the charge itself; 
 and so on with the other charges. A tie vote on a finding is a finding 
 of not guilty. 
 
 [Note. — For refusal to vote a member is chargeable under A. W. 96, see 
 Chap. VII, par. 90.] 
 
 295. Majority necessary to convict — Exception. — All convictions 
 whether by general or special court-martial may be determined by a 
 majority of the members present, except that no person shall by 
 general court-martial be convicted of an offense for which the death 
 penalty is made mandatory by law, unless by the concurrence of two- 
 thirds of the members of said court-martial and for an offense in the 
 Articles of War expressly made punishable by death. (A. W. 43.) 
 
 296. Reasonable doubt. — Where issues arise during the progress of a 
 trial, as for instance as to the competency of members or witnesses, 
 and evidence is taken, the question at issue is determined by pre- 
 ponderance of evidence; but in order to convict of the charges and 
 specifications or any part of them the court must be satisfied of the 
 guilt of the accused beyond a reasonable doubt. 
 
 [Note. — For description of reasonable doubt, see Chap. XI, par. 288.] 
 
 297. General principles controlling findings. — The finding on the 
 charge should be supported by the finding on the specification (or 
 specifications), and the two findings should be consistent with each 
 
142 MANUAL FOE OOUETS-MAKTIAL. 
 
 other. A finding of guilty on the charge would be quite inconsistent 
 with a finding of not guilty on the specification. So a finding of 
 guilty on a well-pleaded specification apposite to the charge, followed 
 by a finding of not guilty either of the article charged or of some other 
 proper article, would be an incongruous verdict. No matter how 
 many specifications there may be, it requires a finding of guilty on 
 but one specification (apposite to the charge) to support a similar 
 finding upon the charge. (Digest, p. 536, XII, A. 2) Evidence can 
 not be taken after a finding has been reached. 
 
 298. Guilty of a lesser included offense. — If the evidence proves the 
 commission of an offense which is included in that with which the 
 accused is charged the court may except words of the specification, 
 and if necessary substitute others instead, pronounce the innocence 
 and guilt of the excepted and substituted words, respectively, and 
 then find the accused either guilty of the charge or not guilty of the 
 charge, but guilty of a violation of another proper article of war as 
 the finding on the specification may require. Of this form of verdict 
 the most familiar is the finding of guilty of absence without leave 
 under a charge of desertion. In such a case the court should find as 
 follows where the charges are in the usual form : 
 
 Of the specification, guilty except the words " desert " and " in 
 desertion " substituting therefor respectively the words " absent him- 
 self without leave from " and " without leave," of the excepted words 
 not guilty, of the substituted words guilty. 
 
 Of the charge, not guilty but guilty of violation of the sixty-first 
 
 article of war. 
 
 [Note. — For a discussion of the incidental power of appointing and confirm- 
 ing authorities to approve and confirm a finding of guilty of a lesser included 
 offense see Chap. XVI, pars. 377 and 379.] 
 
 299. Guilty with exceptions and substitutions. — It is a peculiarity of the 
 finding at military law that a court-martial, where of opinion that 
 any portion of the allegations in a specification is not proved, is 
 authorized to find the accused guilty of a part of a specification only, 
 excepting the remainder; or, in finding him guilty of the whole (or 
 any part), to substitute correct words or allegations in the place of 
 such as are shown by the evidence to be incorrect. And provided the 
 exceptions or substitutions leave the specification still appropriate to 
 the charge and legally sufficient thereunder, the court may then prop- 
 erly find the accused guilty of the charge in the usual manner. Fa- 
 miliar instances of the exercise of the authority to except and sub- 
 stitute in a finding of guilty occur in cases where, in the specifica- 
 tion, the name or rank of the accused or some other person is errone- 
 ously designated, or there is an erroneous averment of time or place, 
 or a mistaken date, or an incorrect statement as to amount, quantity, 
 
COURTS-MARTIAL — CONCLUDING INCIDENTS OF THE TRIAL. 143 
 
 quality, or other particular, of funds or other property. But the 
 authority to find guilty of a lesser included offense, or otherwise to 
 make exceptions and substitutions in the findings, does not justify the 
 conviction of the accused of an offense entirely separate and distinct 
 in its nature from that charged, thus " selling " and " through neg- 
 lect losing " property are separate offenses though each is a violation 
 of A. W. 84. 
 
 300. Substitution of general for specific article in the charge. — Another 
 legal and now common form of finding is where an accused is charged 
 with an offense, made punishable by an article of war other than the 
 ninety-sixth (as for instance the ninety -fifth article), and the court 
 is of the opinion that, while the material allegations in the specifi- 
 cation are proved, they do not fully sustain the charge as laid, but 
 do clearly constitute a violation of the ninety-sixth article of war. 
 In this case the accused may properly be found guilty of the speci- 
 fication and not guilty of the charge, but guilty of " violation of the 
 ninety-sixth article of war." It should be remembered, however, that 
 the court can not in its findings legally substitute the ninety-sixth 
 article of war for any other, unless the proof fails to substantiate 
 the specification under the original charge. 
 
 301. Joint charges. — Where joint charges are tried, if one or more of 
 the accused persons is acquitted and one or more is convicted, the 
 findings should by proper exceptions eliminate the words showing 
 that the acquitted person or persons was a joint participant in the 
 offense, and should expressly acquit those persons whom it finds not 
 guilty. 
 
 302. Reasons for findings. — A court-martial may spread upon the 
 record of trial a brief statement of reasons upon which its findings 
 are based. In many cases such a statement will aid the reviewing 
 authority in determining the action to be taken by him. 
 
 303. Findings where no criminality is involved. — A finding of " guilty 
 without criminality " is not consistent and should not be made. If 
 the accused is found to have committed the act and done the things 
 alleged in the specification, but without the guilty intent or knowl- 
 edge essential to constitute the offense, the court should, as to the 
 specification, find the accused " not guilty." 
 
 304. Findings under charge of drunkenness. — A person " under the in- 
 fluence of intoxicating liquor " or " intoxicated " is " drunk." There- 
 fore, under the eighty-fifth article of war, in charging that the 
 accused was found " drunk " the word " drunk " will be used. So in 
 charging other offenses involving drunkenness no other word or 
 phrase will be used as a substitute for " drunk." Under such charges 
 the court should not in its findings substitute such phrases as " under 
 the influence of intoxicating liquor " and " intoxicated " for " drunk." 
 
144 MANUAL FOB OOTJBTS-MABTTAL. 
 
 305. Recording of finding or sentence by reporter. — A court-martial, 
 member of court, or judge advocate can not, of course, lawfully com- 
 municate to a reporter or clerk, by allowing him to record the same 
 or otherwise, the finding or sentence of the court. But the fact that 
 the finding or sentence or both may have been made known to a re- 
 porter or clerk can not affect the legality of its proceedings or 
 sentence. (Digest, p. 558, XIV, E, 7, g.) 
 
 Section III. 
 PREVIOUS CONVICTIONS. 
 
 306. Procedure as to previous convictions. — Courts-martial will, in the 
 case of a soldier, after a finding of guilty, be opened for the purpose 
 of ascertaining whether evidence of previous convictions has been 
 referred to the court by the appointing authority, and if so, of re- 
 ceiving it. The introduction and use of evidence of previous con- 
 victions will be limited to that pertaining to convictions by courts- 
 martial of an offense or offenses committed by the accused during 
 the current enlistment and within one year next preceding the com- 
 mission of any of the offenses of which he stands convicted before 
 the court. These convictions may be proved only by the records of 
 previous trials and convictions or by duly authenticated copies of 
 such records, or by duly authenticated copies of orders promulgating 
 such trials and convictions. Copies of such records and orders pro- 
 mulgating such trials and convictions are duly authenticated through 
 the impressed stamp of the bureau, office, or headquarters having 
 custody of the original. The proper evidence of a previous convic- 
 tion by summary court is a copy of the summary court record fur- 
 nished to the company or other commander or one authenticated 
 as an official copy by the signature of the commanding officer or his 
 adjutant, or by the impressed stamp of the headquarters having cus- 
 tody of the original record and furnished for the purpose. In a trial 
 by general court-martial, when the proof is the copy furnished to the 
 company or other commander it will be returned to him and a cer- 
 tified copy of it attached to the record. The evidence of previous 
 convictions referred to a special or summary court will, after trial, be 
 returned to the appointing authority and will, after action by the 
 latter on the case, be returned to the company or other command to 
 which it pertains. 
 
 307. Character of previous convictions. — By " previous conviction " is 
 meant a previous conviction by a court-martial where the sentence 
 has been approved by competent authority. A previous conviction 
 by a civil or naval court, an acquittal, or an approved conviction by a 
 court-martial that has been set aside as illegal is not a " previous con- 
 viction " as the phrase is used here. Previous convictions are not 
 
OOUKTS-MARMAL — CONCLUDING INCIDENTS OP THE TEIAL. 145 
 
 limited to those for offenses similar to the one for which the accused 
 is on trial. The object is to see if the accused is an old offender and 
 therefore less entitled to leniency than if on trial for his first offense. 
 This information might not be fully obtained if evidence of previous 
 convictions of similar offenses only were laid before the court. The 
 consideration of previous convictions has no bearing upon the ques- 
 tion of guilt of the particular charge on trial, but only upon the 
 amount and kind of punishment to be awarded. They are not con- 
 sidered until after the findings have been reached. 
 
 Section IV. 
 SENTENCES. 
 
 308. Voting. — After the findings have been determined upon and re- 
 sulted in a conviction upon the charge or some one at least of the 
 charges when there are several, or in a conviction of a lesser offense 
 included in the one charged, and, in the case of a soldier, the evi- 
 dence of previous convictions, if any, have been introduced, the court 
 proceeds to adjudge the sentence. In voting, the thirty-first article 
 of war requires that the junior in rank shall vote first, and the votes 
 are therefore taken in the inverse order of rank. Those members 
 desiring to propose a sentence usually write it on a slip of paper and 
 hand it to the president. The president reads the proposed sentences 
 to the court and the members vote on them in order, beginning with 
 the lightest, until a majority present, or, in cases where the death 
 penalty is mandatory, two-thirds of the members of the general 
 court-martial agree upon a sentence. (See A. W. 43.) Even in a 
 case where the punishment is fixed, as, for instance, under the eighty- 
 second article where the punishment for lurking or acting as a spy 
 is death, and under the ninety-fifth article where the punishment is 
 dismissal, the members must by vote impose this punishment. All 
 the members of the court, those who voted for an acquittal equally 
 with those who voted for conviction, should vote for some sentence. 
 
 309. Mandatory and discretionary punishments. — Punishment, under 
 the Articles of War, is either mandatory, that is, a certain punish- 
 ment is prescribed by the terms of the article, or is discretionary, 
 that is, it is left to the discretion of the court-martial. If the 
 punishment is prescribed in the article violated, any other punish- 
 ment than that prescribed is illegal. For instance the punishment 
 imposed by a court for a violation of the ninety-fifth article of war 
 must be dismissal, it can not be less and it can not be more, though a 
 conviction under other articles at the same trial might authorize the 
 inclusion of other forms of punishment in the sentence. Before pro- 
 nouncing sentence, the court should, therefore, examine the article 
 
 70844°— 16 11* 
 
146 MANUAL FOE COURTS-MARTIAL. 
 
 violated to see what punishment may be legally awarded. As to 
 discretionary punishments the President, by virtue of an act of 
 Congress, has by executive order prescribed maximum limits of 
 punishment for certain offenses when committed by soldiers. The 
 latest order is found in Chapter XIII, par. 349. If the punish- 
 ment is discretionary the court, before proceeding to award a punishr 
 ment, will ascertain whether a limit is fixed in the order, and if 
 no limit is fixed the court may impose any punishment that is sanc- 
 tioned by the custom of the service. 
 
 [Note. — See mandatory and discretionary punishment, Chap. IV, Sec. II, 
 par. 40.] 
 
 310. Sentences for officers. — For officers the legal sentences by court- 
 martial, depending on the nature of the offense, include death, dis- 
 missal with confinement at hard labor, dismissal, loss of rank, sus- 
 pension from rank, command, or duty, with or without loss of pay 
 or part of pay, fine or forfeiture of pay, confinement to limits of post 
 or reservation, reprimand, and admonition. 
 
 [Note. — Immediately upon the promulgation of any sentence of court-martial 
 in the case of a commissioned officer involving suspension from rank and com- 
 mand, confinement, reduction in lineal rank, or any other material change in 
 the officer's status, the commander who has authority to approve such sentence 
 and carry it into execution will advise The Adjutant General of the Army, by 
 telegraph, of the sentence imposed as approved or mitigated and the date of 
 promulgation thereof. (G. O. No. 6, War Dept., 1910.).] 
 
 311. Sentences for soldiers. — For soldiers, the legal sentences, depend- 
 ing on the nature of the offense and the jurisdiction of the court, 
 include death, dishonorable discharge, confinement at hard labor, hard 
 labor without confinement, forfeiture of pay, detention of pay, and 
 reprimand; for noncommissioned officers, reduction to the ranks; for 
 privates, first class, reduction to second-class privates and privates; 
 for cooks of the Quartermaster Corps (where sentence is imposed 
 by a general court-martial) reduction to the ranks; and for those 
 holding a certificate of eligibility to promotion, deprivation of all 
 rights and privileges arising from such a certificate. 
 
 [Note. — 1. Confinement without hard labor should never be imposed. 2. For 
 forms for sentences, see Appendix 9.] 
 
 312. Dismissal. — Under the article of war which prescribes the sen- 
 tence of dismissal upon conviction, no punishment in addition to 
 dismissal is authorized. Therefore no punishment in addition to dis- 
 missal can legally be imposed upon conviction of an offense under the 
 ninety-fifth article of war alone. 
 
 [Note. — For statement by whom a sentence of dismissal or dishonorable dis- 
 charge imposed by National Guard courts-martial, not in the service of the 
 United States, must be approved, see sec. 107, act of June 3, 1916 ; 39 Stat., 166 ; 
 Appendix 2, post.] 
 
 313. Loss of rank. — Loss of rank is accomplished by a sentence direct- 
 ing that an accused be placed at the foot of the list of officers of his 
 
COURTS-MARTIAL — CONCLUDING INCIDENTS OF THE TRIAL. 147 
 
 grade and arm, or that he remain at the foot of such list until he shall 
 have lost a certain number of files, or for a certain length of time, or 
 that he lose a certain number of files, or that his name shall appear 
 in the lineal list of officers of his arm next below that of a certain 
 officer named. 
 
 314. Suspension from rank. — Suspension from rank includes suspen- 
 sion from command. It deprives an officer of the right, to promotion 
 to a vacancy in a higher grade occurring pending the term of sus- 
 pension and which he would have been entitled to receive by virtue 
 of seniority had he not been suspended. It does not, however, de- 
 prive the officer of the right to rise in files in his grade. Suspension 
 from rank also makes an officer ineligible to sit upon a court-martial, 
 court of inquiry, or military board, and deprives him of privileges 
 that depend on rank, such as the selection of quarters. 
 
 315. Suspension from command. — This punishment merely deprives 
 the officer of authority to exercise his proper military command and, 
 consequently, of his right to give orders to or exact obedience from 
 his juniors or perform any other duties that go with the exercise of 
 command. It does not affect his right of promotion or any military 
 rights or privileges other than those attaching to command. It is 
 therefore not an appropriate punishment for a staff officer. 
 
 316. Suspension from duty. — Suspension from duty is practically 
 equivalent to a sentence of suspension from command. It is appro- 
 priate in the case of an officer holding a position involving the per- 
 formance of administrative duty, as distinguished from actual mili- 
 tary command, as in the case of officers of the staff. 
 
 317. Fine. — A fine is distinguished from a forfeiture in that it is a 
 punishment which imposes a pecuniary liability in general, not neces- 
 sarily affecting pay. It is especially recognized as a form of punish- 
 ment in the ninety- fourth article of war. It is usually accompanied 
 in the sentence by a provision, in order to enforce collection, that the 
 person fined shall be imprisoned until the fine is paid or until a fixed 
 portion of time considered as an equivalent punishment has expired. 
 Fines as well as forfeitures accrue - to the United States and can not 
 be imposed or collected for the benefit of any individual. 
 
 318. Reprimand. — This sentence is usually awarded to officers only 
 and for minor offenses where a mild penalty is to be inflicted. In 
 general it is not appropriate for enlisted men, but is authorized in the 
 cases of noncommissioned officers. The proper authority to admin- 
 ister the reprimand is the reviewing authority, and he may vary it in 
 severity or mildness, according to his views of the case. 
 
 319. Confinement to limits of post or reservation. — This form of pun- 
 ishment is rather a deprivation of a privilege than confinement. 
 Where it is imposed on an officer on duty with troops it is customary 
 
148 MANUAL FOB COURTS-MARTIAL. 
 
 to so qualify it as to enable him to take part in maneuvers, practice 
 marches, and perform other duties connected with his command. 
 
 320. Dishonorable discharge. — A dishonorable discharge can be im- 
 posed only pursuant to a sentence of a general court-martial. The 
 discharge should be dated as of the day on which the order promul- 
 gating such approval is received at the post where the soldier is held. 
 A sentence adjudging a dishonorable discharge to take effect at such 
 period during a term of confinement as may be designated by the 
 reviewing authority is illegal. 
 
 321. Suspension of dishonorable discharge. — Members of a court-mar- 
 tial may properly recommend, in a communication made separately 
 but forwarded to the reviewing authority with the record, that sen- 
 tence of dishonorable discharge be suspended. (See par. 332.) 
 
 322. Confinement at hard labor. — In the case of officers this punish- 
 ment is imposed only in connection with a sentence of dismissal. 
 Where " hard labor " is intended, it should be stated in the sentence, 
 but the omission of these words will not prevent such punishment be- 
 ing required where it is authorized in the maximum-punishment 
 order. (See A. W. 37.) 
 
 [Note. — Chap. XVI, Sec. I, pars. 396-398, state the rules as to whether a post, 
 the United States Disciplinary Barracks or one of its branches, or a peniten- 
 tiary shall be designated as the place of confinement.] 
 
 323. Hard labor without confinement. — This punishment is regulated 
 by the provisions of the Executive order fixing the maximum limits 
 of punishment, Chapter XIII, Section VI, par. 349. 
 
 324. Forfeiture of pay and allowances. — Pay and allowances can not 
 be forfeited in a sentence by implication. If the court intends to 
 forfeit pay or pay and allowances, the penalty of forfeiture should 
 be adjudged in express terms in the sentence. No other punishment 
 imposable by court-martial — not even a sentence of death, dismissal, 
 suspension, dishonorable discharge, or imprisonment — involves of 
 itself a forfeiture or deprivation of any part of the pay or allow- 
 ances due the party at the time of the approval or taking effect of 
 the sentence. It is not customary, to provide in sentences for a for- 
 feiture of allowances unless the sentence also imposes a dishonorable 
 discharge and forfeiture of pay. A sentence of forfeiture of a cer- 
 tain number of days' pay, or two-thirds of a soldier's pay for a 
 certain period does not forfeit extra-duty pay. (Digest, p. 544, XII, 
 B, 3, e (1) ; Bui. 18, War Dept., 1915, pp. 8, 9.) 
 
 325. Courts can not stop pay in favor of Government or an individual. — 
 A court-martial can direct a forfeiture only in favor of the United 
 States, and can not assign the pay of a soldier to any other person ; 
 nor can a soldier be required to receipt for money paid without his 
 consent. A sentence can not appropriate, or stop pay for the reim- 
 bursement or benefit of the Government or a Government agency, 
 
COURTS-MARTIAL — CONCLUDING INCIDENTS OP THE TRIAL. 149 
 
 such as a company fund, post fund, hospital fund, nor of an in- 
 dividual civil or military, however justly the same may be due 
 him, either for money borrowed, stolen, or embezzled by the accused 
 or to satisfy any other pecuniary liability of the accused, whether 
 in the nature of debt or damages. The " stoppage " of pay to reim- 
 burse the Government or a Government agency on account of losses 
 for which officers and enlisted men are responsible is purely an ad- 
 ministrative matter with which courts-martial have nothing to do. 
 Sentences providing that a soldier shall be dishonorably discharged, 
 forfeiting all pay and allowances due or to become due, " except such 
 
 amounts as may be due the post exchange, Fort , and the 
 
 company fund, Company , Infantry," in no way hasten 
 
 or facilitate the settlement of the debts due the exchange or company 
 fund. Such matters in a sentence are mere surplusage. 
 
 326. Forfeiture of deposits. — Deposits of soldiers and interest thereon 
 are forfeited by desertion, but the forfeiture can not be imposed 
 by sentence of a court-martial. They are exempt from liability to 
 meet a sentence of a court-martial imposing forfeiture of pay or 
 allowances. A sentence that a soldier shall deposit a certain part of 
 his pay is illegal. (Digest, p. 547, XII, B, 4, c.) 
 
 327. Reduction of noncommissioned officer. — This punishment is regu- 
 lated by the provisions of the Executive order fixing maximum limits 
 of punishment, Chapter XIII, Section VI, par. 349. 
 
 328. Detention of pay. — This punishment was revived by the Execu- 
 tive order of September 5, 1914, fixing the maximum limits of pun- 
 ishment, and is regulated by the provisions of the Executive order 
 contained in Chapter XIII, Section VI, par. 349. 
 
 329. When reward for apprehending deserter not to be stopped. — If a 
 soldier be brought to trial under a charge of desertion and acquitted, 
 or convicted of absence without leave only, any amount paid as a 
 reward for his arrest will not be stopped against his pay, and a 
 sentence providing for such a stoppage is not authorized. 
 
 330. Sentences of general prisoners. — Courts-martial in imposing sen- 
 tences upon general prisoners are restricted to imposing additional 
 confinement at hard labor to be served upon the completion or termi- 
 nation of their existing sentences, and will not interfere with the 
 manner of executing such sentences by prescribing loss of good- 
 conduct time, solitary confinement, or confinement on bread-and- 
 water diet, leaving all such punishments to be imposed by the com- 
 manding officer as the ordinary means of enforcing discipline. 
 
 331. Reasons for sentence. — A court-martial may spread upon the 
 record of trial a brief statement of reasons upon which its sentence 
 is based. In many cases such a statement will aid the reviewing 
 authority in determining the action to be taken by him. 
 
150 MANUAL FOR COURTS-MARTIAL. 
 
 332. Recommendations to clemency. — When a court-martial, or any\ 
 member thereof, desires to submit a recommendation to clemency,^ 
 including a recommendation for the suspension of the whole or of j 
 any part of the sentence imposed by the court, such recommendation, 
 will be. signed by each member of the court desiring to participate 
 therein. The communication carrying the recommendation will in- « 
 elude a statement in succinct form of the reasons upon which the 
 reommendation is based and will be appended to the record of trial. 
 (See par. 357 (d).) 
 
CHAPTER XIII. 
 COURTS-MARTIAL— PUNISHMENTS. 
 
 Section I: Disciplinary power of commanding officer: Page. 
 
 333. Authority for 151 
 
 334. Record of punishment 152 
 
 335. Appeals 153 
 
 336. Not limited to soldiers 153 
 
 Section II: Confinement in a penitentiary: 
 
 337. When authorized 153 
 
 338. Classes of sentences to be executed in a penitentiary 154 
 
 339. Authority for penitentiary sentence to be cited 155 
 
 Section III: War Department policy regarding punishments: 
 
 340. Desertion 156 
 
 341. Segregation of prisoners 158 
 
 342. Adaptation of punishments 159 
 
 343. Relative severity of punishments 159 
 
 Section IV: Prohibited punishments: 
 
 344. By statute 160 
 
 345. By custom and regulations 160 
 
 Section V: Death — Cowardice — Fraud: 
 
 346. Death penalty 160 
 
 347. Cowardice — Fraud — Accessory penalty 161 
 
 Section VI: Maximum limits: 
 
 348. By whom prescribed 161 
 
 349 . Executive order 161 
 
 Section I. 
 DISCIPLINARY POWER OF COMMANDING OFFICER. 
 
 333. Authority for. — While courts-martial are the judicial machinery 
 provided by law for the trial of military offenses, the law also recog- 
 nizes that the legal power of command, when wisely and justly exer- 
 cised to that end, is a powerful agency for the maintenance of dis- 
 cipline. Courts-martial and the disciplinary powers of commanding 
 officers have their respective fields in which they most effectually 
 function. The tendency, however, is to resort unnecessarily to 
 courts-martial. To invoke court-martial jurisdiction rather than to 
 exercise this power of command in matters to which it is peculiarly 
 applicable and effective, is to choose the wrong instrument, disturb 
 unnecessarily military functions, injure rather than maintain dis- 
 cipline, and fail to exercise an authority the use of which develops 
 and increases the capacity for command. 
 
 Legal sanction is now given to the exercise of such disciplinary 
 power by the following article of war : 
 
 "Art. 104. Under such regulations as the President may prescribe, 
 and which he may from time to time revoke, alter, or add to, the 
 commanding officer of any detachment, company, or higher command 
 
 151 
 
152 MANUAL FOE, COURTS-MARTIAL. 
 
 may, for minor offenses not denied by the accused, impose dis- 
 ciplinary punishments upon persons of his command without the 
 intervention of a court-martial, unless the accused demands trial by 
 court-martial. 
 
 The disciplinary punishments authorized by this article may in- 
 clude admonition, reprimand, withholding of privileges, extra 
 fatigue, and restriction to certain specified limits, but shall not in- 
 clude forfeiture of pay or confinement under guard. A person 
 punished under authority of this article who deems his punishment 
 unjust or disproportionate to the offense may, through the proper 
 channel, appeal to the next superior authority, but may in the mean- 
 time be required to undergo the punishment adjudged. The com- 
 manding officer who imposes the punishment, his successor in com- 
 mand, and superior authority shall have power to mitigate or remit 
 any unexecuted portion of the punishment. The imposition and en- 
 forcement of disciplinary punishment under authority of this article 
 for any act or omission shall not be a bar to trial by court-martial 
 for a crime or offense growing out of the same act or omission; but 
 the fact that a disciplinary punishment has been enforced may be 
 shown by the accused upon trial, and when so shown shall be con- 
 sidered in determining the measure of punishment to be adjudged in 
 the event of a finding of guilty." 
 
 While commanding officers should always use their utmost influ- 
 ence to prevent breaches of discipline and compose conditions likely 
 to give rise to such breaches, they should also impose and enforce 
 the disciplinary punishment authorized by the above article. This 
 authority, involving the power, judgment, and discretion of the 
 commander, can not be delegated to or in any manner participated 
 in by others, but must be exercised by the commander upon his own 
 judgment and in strict compliance with the article and the regula- 
 tions prescribed by the President pursuant thereto. Accordingly, 
 the commanding officer of a detachment, company, or higher com- 
 mand will usually dispose of, and may award disciplinary punish- 
 ment for, any offense committed by any enlisted man of his com- 
 mand which would ordinarily be disposed of by summary court- 
 martial, when the accused does not deny that he committed the 
 offense and does not demand trial by court-martial before the com- 
 manding officer has made and announced his decision in the case. 
 
 334. Record of punishment. — For each punishment awarded, the 
 commander will cause a brief record to be made showing — 
 
 (<r) Name of accused. 
 
 (5) Brief statement of offense, including time and place. 
 
 (c) Statement as to whether or not accused demanded trial by 
 court-martial. To be effective such demand must be made before 
 award of punishment by commanding officer. 
 
COURTS-MARTIAL PUNISHMENTS. 153 
 
 (d) Disposition of case, with date and punishment awarded, if 
 toy. 
 
 (e) Whether or not appeal was made to higher authority. 
 
 (f) Decision of higher authority on appeal. 
 
 (g) Whether or not accused was required to serve punishment 
 pending appeal. 
 
 335. Appeals. — If an appeal is made to the next superior authority it 
 shall be in writing through the immediate commander awarding the 
 punishment or his successor, who will immediately forward it to the 
 superior with a copy of the record. An appeal shall consist of a 
 brief statement signed by the accused, giving his reasons for regard- 
 ing the punishment as unjust or disproportionate, and shall be ac- 
 companied by a like brief statement by the commander in support of 
 the punishment awarded. The superior will, in passing upon the ap- 
 peal, hear no witnesses and will consider no statements other than 
 those forwarded with the appeal, but will be limited strictly to the 
 consideration of the punishment awarded. He will be reluctant to 
 disturb the award of punishment, but when justice clearly requires 
 such action he may modify, set aside, .or even increase the punish- 
 ment awarded, but in no case will he award a different kind of pun- 
 ishment. After having considered the appeal he will return the 
 record to the commanding officer from whom received, with a state- 
 ment of his disposition of the case. 
 
 336. Not limited to soldiers. — The power is not limited in its applica- 
 tion, either in law or principle, to enlisted men, but may with pro- 
 priety be applied as well to commissioned officers, especially those 
 of junior grades. Obviously in the case of officers the occasion for 
 such action will be less frequent, the variety of punishment available 
 more restricted, and the selection of the most effectual punishment 
 more perplexing, but when the best interests of discipline require 
 such action it shall be taken with firmness and in no wise restrained 
 by an unwarranted regard for the commissioned grade of the 
 offender;. 
 
 If the accused demands a court-martial, steps will promptly be 
 taken to bring him to trial and notation of the demand will appear 
 upon the charges. 
 
 Section II. 
 
 CONFINEMENT IN A PENITENTIARY. 
 
 337. When authorized. — The forty-second article of war follows the 
 rules of the Federal Penal Code and practice respecting the impo- 
 sition of penitentiary confinement in so far as they can be applied 
 to court-martial procedure. Under the Federal Penal Code any 
 offense is a felony which is pwiishdble under the code or other statute 
 of the United States by confinement in excess of one year. But 
 
154 MANUAL FOE COURTS-MAETIAL. 
 
 no person may be confined in a penitentiary uuless the punishment 
 actually adjudged for an offense of which he has been convicted 
 exceeds one year. Under civil procedure it is not permissible to 
 join in a single indictment and trial offenses of a different nature. 
 As a matter of practice, also, confinement is never ordered to be 
 executed in a penitentiary unless among the offenses upon which the 
 sentence is awarded is found a felony; that is to say, an offense of 
 a civil nature, separately punishable by confinement to exceed one 
 year. The practical result is that no person is confined in a peni- 
 tentiary unless both of the following conditions subsist : 
 
 (1) The confinement that could lawfully he awarded as punish- 
 ment of some one of the offenses of which he stands convicted (if 
 that conviction stood alone) would exceed one year. 
 
 (2) The confinement actually adjudged exceeds one year. 
 
 The ninety-third and ninety-sixth articles of war now confer upon 
 courts-martial jurisdiction to try all crimes and offenses, not capital, 
 of which persons subject to military law may be guilty. Under the 
 military practice, dissimilar offenses may be joined in the same set 
 of charges; convictions may be had on one set of charges joining 
 crimes of a civil nature with purely military offenses, and a single 
 sentence may be adjudged on all the convictions. Also, there are 
 certain purely military offenses which are by statute made punish- 
 able.by confinement in a penitentiary, regardless of the term of con- 
 finement imposed. Notwithstanding these departures from the prac- 
 tice of Federal courts, the jurisdiction granted to courts-martial to 
 punish offenses of a civil nature ought not to be exercised with 
 greater harshness than is practiced under the criminal jurisdiction 
 of United States courts, and the analogies with the penal rules of 
 those courts ought carefully to be maintained. The forty-second 
 article of war and the following rules of practice which result from 
 that article preserve these analogies as far as they can be preserved 
 under court-martial procedure. 
 
 338. Classes of sentences to be executed in a penitentiary. — Sentences 
 of the following classes may be executed in a penitentiary : 
 
 Class 1: Commutation of death sentence. Any confinement, 
 whether more or less than a year, awarded by way of commutation of 
 a death sentence, may be executed in a penitentiary ; and this is true 
 whether the offense for which the sentence of death was awarded was 
 of a military or of a civil nature, and whether the sentence was 
 awarded on conviction of a capital charge alone or on conviction on 
 a capital charge coupled with conviction on other charges not capital. 
 
 Class 2: Military offenses. A sentence of confinement awarded 
 upon conviction of one or more of the military offenses enumerated 
 in this class may be executed in a penitentiary, regardless of the 
 
COURTS-MARTIAL PUNISHMENTS. 155 
 
 length of the sentence imposed, but, in practice, a penitentiary should 
 not be designated unless the confinement adjudged exceeds one year. 
 However, if a conviction is had on several offenses, either military or 
 civil in nature, one of which is included in this class, and the sen- 
 tence adjudged on all the convictions together exceeds one year, the 
 confinement may be executed in a penitentiary. The military of- 
 fenses comprised in this class are : 
 
 (a.) Desertion in time of war. 
 
 (&) Repeated desertion in time of peace. 
 
 (e) Mutiny. 
 
 Class 3: Offenses of a civil nature. A sentence exceeding one 
 year's confinement, awarded, either on conviction of any one or more 
 of the several offenses of a civil nature described below, or on con- 
 viction of any one or more of the several offenses of a civil nature 
 described below, coupled with a conviction or convictions of one or 
 more military offenses, may be executed in a penitentiary, if any one 
 of the several offenses of a civil nature standing alone would be 
 punishable by confinement exceeding one year by the limits of punish- 
 ment order, or, if not covered by said order, then by the law denounc- 
 ing the offense, or by any other Federal statute. 
 
 The civil offenses contemplated in class 3 are : 
 
 (a) An act or omission specified and denounced as an offense in 
 the Penal Code of the United States. 
 
 (&) An act or omission specified and denounced as an offense in 
 any other statute of the United States. This heading has reference 
 particularly to penal provisions not properly separable from the ad- 
 ministrative laws of the several branches and departments of gov- 
 ernment, and not included in the Penal Code. Such offenses will 
 rarely be encountered in court-martial practice. 
 
 (c) An act or omission committed or omitted in any place over 
 which the United States has exclusive jurisdiction as provided in the 
 third paragraph of section 272, Penal Code of the United States, 
 where such act is recognized as an offense by the law of the State, 
 Territory, or District in which such place is situate, and when such 
 act is not specifically denounced in the laws of Congress, but is 
 adopted by section 289 of said code. Such offenses, known to local 
 law and not specifically provided for by Federal law, will constitute 
 a small class, infrequently encountered. 
 
 (d) An act or omission recognized as an offense at the common 
 law as the same exists in the District of Columbia, wherever com- 
 mitted or omitted. The offenses under this head that may be en- 
 countered in court-martial practice include the offense of sodomy. 
 
 339. Authority for penitentiary sentence to be cited. — In each case tried 
 by general court-martial in which a penitentiary is designated as the 
 place of confinement of the person tried, the record of trial, when for- 
 
156 MANUAL FOB OOUBTS-MARTIAL. 
 
 warded to the Judge Advocate General of the Army, will be accom- 
 panied by a signed statement indicating the law or laws authorizing 
 the confinement in a penitentiary of the person sentenced. 
 
 In each case tried by general court-martial in which the confine- 
 ment of the offender in a penitentiary is authorized by law, but in 
 which a place other than a penitentiary is designated as the place of 
 confinement, the record of trial, when forwarded to the Judge Advo- 
 cate General of the Army, will be accompanied by a signed statement 
 indicating the law authorizing the confinement in a penitentiary of 
 the person sentenced and the reasons, briefly expressed, for desig- 
 nating a place other than a penitentiary, instead of a penitentiary, as 
 the place of confinement in the particular case. 
 
 .If the law relied upon as authorizing confinement in a peniten- 
 tiary be a Federal statute an accurate citation will be regarded as 
 sufficient to indicate the law, but if any other law is relied upon as 
 authorizing such confinement, the law will be quoted in full in the 
 required statement. 
 
 Section III. 
 
 WAR DEPARTMENT POLICY REGARDING PUNISHMENTS. 
 
 340. Desertion. — The policy of the "War Department respecting pun- 
 ishment for desertion was announced in General Orders, No. 77, War 
 Department, June 10, 1911. Corrective confinement and forfeiture 
 were suggested in cases of inexperienced soldiers who by surrender 
 manifested a disposition to atone for their offenses. The number so 
 punished and saved to the service has so increased each year that this 
 policy has been enforced with fairly satisfactory results. In addi- 
 tion a limited number of this class of offenders has been restored to 
 duty without trial under the provisions of A. R. 131. 
 
 Since that order was issued important changes have been intro- 
 duced in our military penology. Purely military offenders serving 
 sentences in the United States Disciplinary Barracks at Fort Leaven- 
 worth and its branches may be restored to an honorable status and 
 complete their enlistment. By the act of August 22, 1912 (37 Stat., 
 356), reenlistment of this class of offenders is authorized with the 
 approval, in each case, of the Secretary of War. Under the provisions 
 of the act of April 27, 1914 (38 Stat., 354), dishonorable discharge 
 may be suspended with a view to restoration to duty by remission 
 thereof should the conduct of the offender warrant. There are now 
 additional means of saving men to the colors — men whose offenses are 
 thoughtless acts due to youth or inexperience or committed under 
 some special stress, and for these reasons have in them less of the ele- 
 ment of culpability. Supplementing these methods is the establish- 
 
COURTS-MARTIAL PUNISHMENTS. 157 
 
 ment of disciplinary organizations at the United States Disciplinary 
 Barracks where the offenders of this class who desire reenlistment or 
 restoration may receive an intensive practical training to fit them for 
 efficient service from the moment of rejoining. It is confidently be- 
 lieved that men restored in this way will make better soldiers than 
 those restored by the old methods, viz, without trial under A. K. 131 
 or with trial and a short period of corrective punishment. 
 
 These old methods may be continued in the limited number of 
 cases where there are good grounds for belief that a soldier restored 
 by such methods will creditably complete his enlistment period, but 
 all doubtful cases should be sent before a court competent to adjudge 
 dishonorable discharge and the longer periods of confinement, to 
 the end that advantage may be taken of the more effective methods 
 of reformation and training by hard labor and intensive practical 
 military instruction now provided at the United States Disciplinary 
 Barracks. These periods of confinement are graduated so as to 
 prevent inequalities of punishment for like degrees of culpability 
 and are sufficient, it is believed, to meet the ends of punishment where 
 restoration to duty is not in contemplation. Where restoration is in 
 contemplation, as in case of purely military offenders, including 
 deserters, the period of confinement imposed is, under the new policy, 
 in practical effect the maximum of an indeterminate sentence. In 
 other words, the period for which the offender is held depends 
 entirely upon himself. With good conduct and proper progress 
 toward reform evidencing efficiency in training and fitness to re- 
 sume service relations the sentence of confinement terminates and 
 the honorable status of duty with the colors is resumed. 
 
 While it is the effect of this policy to mitigate the condition of the 
 peace deserter who desires to redeem his record and earn an honorable 
 restoration to duty with the colors, it carries no substantial mitiga- 
 tion as to other classes of deserters. Experience has not thus far 
 demonstrated the wisdom of any change in the policy of severe 
 punishment for this latter class. An engagement for military service 
 has little in common with an ordinary private contract for personal 
 service, and the fact that an individual may abandon such a con- 
 tract with only minor consequences to himself furnishes no suggestion 
 that a corresponding rule may be properly adopted in the Army. 
 Nor does the fact that the early requirement of the common law that 
 a call to civil office or civil employment under the Government could 
 not be disregarded by the citizen, nor the obligations of such office or 
 employment be laid down at his will, no longer obtains, furnish any 
 such suggestion. An engagement for military service creates a 
 special status, and many obligations flow from that status which are 
 not obligations of the citizen in the civil service of the Government 
 or under a private contract for personal service. Other closely re- 
 
158 MANXJAt FOB COURTS-MARTIAL. 
 
 lated considerations inherent in the nature of military service support 
 this view. The Army is an emergent arm of the public service which 
 the Nation holds ready for a time of great peril. Military service is 
 an obligation which every citizen owes the Government. It is settled 
 law that such service may be compelled, if necessary, by draft. Nor 
 is the obligation of the soldier who volunteers for a fixed period dif- 
 ferent from that of the drafted soldier. By his act of volunteering 
 he consecrates himself to the military service. His engagement, sup- 
 ported by an oath of allegiance, is that the Nation may depend upon 
 him for such service during the fixed period, whatever may be the 
 emergency. When this engagement is breached a high obligation to 
 the Nation is disregarded, a solemn oath of allegiance is violated, and 
 the Government is defrauded in the amount of its outlay incident to 
 inducting the soldier into the military service, training, clothing, and 
 caring for him while he remains in that service, and transporting him 
 to the station from which he deserts. Desertion is thus seen to be, 
 not simply a breach of contract for personal service, but a grave crime 
 against the Government ; in time of war perhaps the gravest that a 
 soldier can commit, and at such times punishable with death. These 
 facts furnish ample justification for a continuance of the policy of 
 severe punishment for the offense of desertion in time of peace, sub- 
 ject only to the qualification that it should not be severe to the degree 
 of barring an honorable restoration to duty of the thoughtless, young, 
 or inexperienced offenders, who desert and who, on return, manifest 
 a desire to atone for their desertions and qualify themselves in 
 character and training for such restoration by service in the disci- 
 plinary battalions and companies now organized at the United States 
 Disciplinary Barracks. 
 
 341. Segregation of prisoners.— It is the policy of the War Depart- 
 ment to separate, so far as practicable, general prisoners convicted of 
 offenses punishable by penitentiary confinement from general pris- 
 oners convicted of purely military offenses or of misdemeanors in 
 connection with purely military offenses. In furtherance of this 
 policy, reviewing authorities will designate a penitentiary as the 
 place of confinement of general prisoners sentenced to be confined 
 for more than one year according to the rules laid down in Sec- 
 tion II, supra, except in individual cases in which the proved 
 circumstances show that the holding of the prisoners so convicted in 
 barracks associations with misdemeanants and military offenders will 
 not be to the detriment of the latter. For general prisoners to be con- 
 fined in penitentiaries, reviewing authorities in the United States, 
 Canal Zone, Hawaii, or the Philippine Islands will designate the 
 United States penitentiary at Leavenworth, Kans., as the place of con- 
 finement, except that such prisoners as are residents of Hawaii, Porto 
 Eico, and the Canal Zone may be confined in local penitentiaries, 
 
COURTS-MARTIAL PUNISHMENTS. 159 
 
 and reviewing authorities in the Philippine Islands will designate 
 the penitentiary at Bilibid, Manila, P. I., as the place of confinement 
 for prisoners who are residents of the Philippine Islands. 
 
 342. Adaptation of punishments. — In cases where the punishment is 
 discretionary the best interests of the service and of society demand 
 thoughtful application of the following principles: That because 
 of the effect of confinement upon the soldier's self-respect confine- 
 ment is not to be ordered when the interests of the service permit it 
 to be avoided; that a man against whom there is no evidence of 
 previous convictions for the same or similar offenses should be pun- 
 ished less severely than one who has offended repeatedly ; that the 
 presence or absence of extenuating or aggravating circumstances 
 should be taken into consideration in determining the measure of 
 punishment in any case; that the maximum limits of punishment 
 authorized are to be applied only in cases in which, from the nature 
 and circumstances of the offense and the general conduct of the 
 offender, severe punishment appears to be necessary to meet the 
 ends of discipline; and that in adjudging punishment the court 
 should take into consideration the individual characteristics of the 
 accused, with a view to determining the nature of the punishment 
 best suited to produce the desired results in the case in question, as 
 the individual factor in one case may be such that punishment of 
 one kind would serve the ends of discipline, while in another case 
 punishment of a different kind would be required. As an instance 
 of the necessity for adapting punishment to the particular case 
 under consideration, it is to be noted that prior experience with 
 detention of pay by sentence of court-martial indicates that this 
 form of punishment, while not generally applicable, was neverthe- 
 less found to be an effective means of restraint and discipline for a 
 considerable number of offenders. 
 
 343. Relative severity of punishments. — The usual punishments im- 
 posed upon soldiers are the following, beginning with the least 
 severe : 
 
 (1) Detention of pay, 
 
 (2) Forfeiture of pay, 
 
 (3) Reduction, 
 
 (4) Hard labor without confinement, 
 
 (5) Confinement at hard labor, and 
 
 (6) Dishonorable discharge. 
 
 In the absence of evidence of two or more previous convictions, a 
 minor offense, the nature of which appears to demand punishment by 
 hard labor, should ordinarily be punished by hard labor without con- 
 finement, rather than by confinement at hard labor. For offenses 
 properly punishable by detention of pay, forfeiture of pay, reduc- 
 
160 MANUAL FOR COTJB.TS-MABTIAL. 
 
 tion, or hard labor without confinement, those forms of punishment 
 should, as a rule, be resorted to before confinement at hard labor is 
 imposed. 
 
 Section IV. 
 
 PROHIBITED PUNISHMENTS. 
 
 344. By statute. — Punishment by flogging, or by branding, marking, 
 or tattooing on the body is prohibited. (A. W. 41.) 
 
 345. By custom and regulations. — Many punishments formerly sanc- 
 tioned have now, under a more enlightened spirit of penology, become 
 so obsolete as to be effectually prohibited by custom without the 
 necessity of regulations; among these, are carrying a loaded knap- 
 sack, wearing irons (both handcuffs and leg irons — these are now 
 used only in exceptional cases for the purpose of preventing escape 
 and not as a punishment), shaving the head, placarding, pillory, 
 stocks, and tying up by the thumbs. To impose military duty in any 
 form as a punishment must tend to degrade it, to the prejudice of the 
 best interests of the service; such punishments, therefore, as impos- 
 ing tours of guard duty or requiring a soldier to sound all calls at 
 the post for a certain period, are forbidden. Solitary confinement 
 on a bread and water diet and the placing of a prisoner in irons are 
 regarded as means of enforcing prison discipline. They will not be 
 imposed as a punishment by a court-martial. 
 
 Section V. 
 DEATH— COWARDICE— FRAUD. 
 
 346. Death penalty. — No person shall, by general court-martial, be 
 convicted of an offense for which the death penalty is made manda- 
 tory by law, nor sentenced to suffer death, except by the concur- 
 rence of two-thirds of the members of said court-martial and for an 
 offense in these articles expressly made punishable by death. (A. W. 
 43.) A court-martial, in imposing the sentence of death, should not 
 designate the time and place for its execution, such designation not 
 being within its province, but -pertaining to that of the reviewing or 
 confirming authority. If it does so designate, this part of the sen- 
 tence may be disregarded, and a different time and place be fixed by 
 the reviewing or confirming authority. (Digest, p. 165, XCVI, B. ) If 
 the designated day passes without execution, the same authority, or 
 his superior, may name another day. Death by hanging is considered 
 more ignominious than death by shooting and is the usual method of 
 execution designated in the case of spies, of persons guilty of murder 
 in connection with mutiny, or sometimes for desertion in the face of 
 the enemy; but in case of a purely military offense, as sleeping on 
 
DOUBTS-MARTIAL — PUNISHMENTS. 161 
 
 post, such sentence when imposed is usually " to be shot to death with 
 musketry." Hanging is the proper method of executing a death sen- 
 tence when imposed for violation of A. W. 92. For the sake of 
 example and to deter others from committing like offenses the death 
 sentence may, when deemed advisable, be executed in the presence of 
 the troops of the command. 
 
 347. Cowardice — Fraud — Accessory penalty. — When an officer is dis- 
 missed from the service for cowardice or fraud, the crime, punish- 
 ment, name, and place of abode of the delinquent shall be published 
 in the newspapers in and about the camp and in the State from which 
 the offender came or where he usually resides ; and after such publi- 
 cation it shall be scandalous for an officer to associate with him. 
 (A. W. 44.) The terms " cowardice " and " fraud " as employed in 
 this article refer mainly to the offenses made punishable by A. W. 75 
 and 94. With these, however, may be regarded as included all 
 offenses in which fraud or cowardice is necessarily involved, though 
 the same be not expressed in terms in the charge or specification. 
 (Digest, p. 166, C, A.) The publication throughout the United 
 States in press dispatches of " the crime, punishment, name, and 
 place of abode " of the accused is a sufficient compliance with the 
 article. (See Digest, p. 167, C, B.) 
 
 Section VI. 
 MAXIMUM LIMITS. 
 
 348. By whom prescribed. — Whenever the punishment for a crime or 
 offense made punishable by these articles is left to the discretion of 
 the court-martial, the punishment shall not, in time of peace, exceed 
 such limit or limits as the President may from time to time prescribe. 
 (A. W. 45.) 
 
 349. Executive order. — The following Executive order becomes op- 
 erative on March 1, 1917, as to offenses committed on and after that 
 date and as to criminal acts, committed prior to that date, whose 
 maximum punishment was not prescribed in the Executive order of 
 September 5, 1914. The Executive order of September 5, 1914, pub- 
 lished in General Orders, No. 70, War Department, 1914, prescribing 
 limits of punishment, remains operative as to offenses committed 
 before March 1, 1917, except as to criminal acts whose maximum 
 punishment has been decreased by this order, which will not be fol- 
 lowed by severer punishment than is hereinafter prescribed. 
 
 Executive Oedek. 
 
 Under authority of an act of Congress approved September 27, 1890 (26 Stat., 
 491), as reenacted in article 45 of section 3 of an act of Congress approved 
 August 29, 1916 (39 Stat., 657), the following maximum limits, in time of peace, 
 of punishment of soldiers are prescribed : 
 
 70844°— 16 12* 
 
162 
 
 MANUAL FOR COURTS-MARTIAL, 
 
 Article I.- 
 
 
 Offenses. 
 
 Punishments. 
 
 o 
 
 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- 
 feiture 
 of pay 
 
 +3 
 
 Years. 
 
 Months. 
 
 Days. 
 
 Months. 
 
 Days. 
 
 64 
 
 Enlistment, fraudulent: 
 
 Procured by means of willful misrepre- 
 sentation or concealment of a fact in 
 regard to a prior enlistment or dis- 
 charge, or in regard to a conviction 
 of a civil or military offense, or in 
 regard to imprisonment under sen- 
 tence of a court. 
 
 Yes 
 Yes 
 
 1 
 
 
 
 
 
 
 6 
 6 
 
 
 
 
 68 
 
 Attempting to desert: 
 
 After not more than six months in 
 
 service. 
 Aftar more than six months in service. . - 
 In the execution of a conspiracy or in 
 the presence of an unlawful assem- 
 blage which the troops may be oppos- 
 ing. 
 Desertion: 
 
 Terminated by apprehension — 
 
 Not more than 6 months in service 
 
 at time of desertion. 
 More than 6 months In service at 
 time of desertion. 
 Terminated by surrender— • 
 After absence of not more than 30 
 
 days. 
 After absence of more than 30 days. . 
 In the execution of a conspiracy or in 
 the presence of an unlawful assem- 
 blage which the troops may be oppos- 
 ing. 
 
 Yes 
 
 
 
 
 
 
 Yes 
 Yes 
 
 Yes 
 Yes 
 
 Yes . 
 
 Yes 
 Yes 
 
 1 
 3 
 
 11 
 2* 
 
 1 
 6* 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 69 
 
 6 
 
 
 6 
 
 
 Assisting knowingly, or persuading another 
 
 Yes 
 
 1 
 
 
 
 
 3 
 
 
 
 61 
 
 Absence without leave: 
 
 From command, quarters, station, or 
 
 camp — . 
 
 For not more than 30 days, for each 
 
 day or fraction of a day of absence. 
 
 2 
 
 
 Yes 
 
 
 6 
 
 
 
 
 From guard— • 
 
 
 
 
 
 IS 
 
 
 
 
 
 3 
 
 
 3 
 
 
 
 Failing to repair at the fixed time to the 
 properly appointed place of assembly for, 
 or place for: 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 3 
 
 
 
 
 
 2 
 
 
 2 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 1 
 
COURTS-MARTIAL PUNISHMENTS. 
 
 Article I — Continued. 
 
 163 
 
 
 Offenses. 
 
 Punishments. 
 
 ! 
 
 o 
 
 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- 
 feiture 
 of pay. 
 
 
 Years. 
 
 Months. 
 
 Days. 
 
 Months. 
 
 Days. 
 
 61 
 
 Leaving without permission the properly 
 appointed place of assembly for, or place 
 for: 
 
 
 
 • 
 
 
 
 
 
 Drill 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 S 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 2 
 
 fi? 
 
 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 in 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, 
 or using other threatening language toward 
 a noncommissioned officer In the execution 
 of his office. 
 
 Using insulting language toward a noncom- 
 missioned officer in the execution of his 
 office. 
 
 Drawing a weapon upon a noncommis- 
 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 
 
 Yes .... 
 
 1 
 
 
 ' 
 
 
 
 6*t 
 
 6 
 6 
 
 2 
 
 6 
 
 
 6 
 6 
 
 2 
 
 6 
 
 
 65 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Yes . 
 
 1 
 
 
 
 4 
 2 
 
 
 4 
 2 
 
 
 
 
 
 
 68 
 
 Yes.. .. 
 Yes 
 
 5 
 2 
 
 
 
 
 
 
 
 
 6 
 1 
 
 
 6 
 1 
 
 
 no 
 
 
 
 
 
 
 Yes.. .. 
 Yes 
 
 Yes.. .. 
 
 1 
 1 
 
 1 
 
 
 71 
 
 Releasing, without proper authority, a 
 
 
 
 
 
 
 
 
 
 
 
 Suffering a prisoner committed to"his charge 
 to escape: 
 
 
 
 
 6 
 
 3 
 6 
 
 
 6 
 
 3 
 6 
 
 
 83 
 
 Suffering, through neglect, military prop- 
 erty to be damaged, lost, spoiled, or 
 wrongfully disposed of: 
 
 
 
 
 
 Of a value of $50 or less and more than 
 
 $20. 
 Of a value of more than $60 
 
 
 
 
 
 Yes 
 
 1 
 
 
164 
 
 MANUAL FOB COURTS-MARTIAL. 
 Article I — Continued. 
 
 
 Offenses. 
 
 Punishments. 
 
 1 
 
 o 
 © 
 
 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- 
 feiture 
 of pay. 
 
 "-J3 
 
 Years. 
 
 Months. 
 
 Days. 
 
 Months. 
 
 Days. 
 
 83 
 
 Suffering, willfully, military property to be 
 damaged, lost, spoiled, 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, ammunition, accouterments, equip- 
 ment, clothing, or other property issued 
 for use in the military service, or items 
 belonging to two or more of said classes: 
 
 3 
 6 
 
 
 3 
 
 a 
 
 
 
 Of a value of $50 or less and more than 
 $20. 
 
 
 
 
 
 Yes.. .. 
 
 1 
 
 
 
 Injuring or losing, willfully, horse, arms, 
 ammunition, accouterments, equipment, 
 clothing^ or other property issued for use 
 in the military service, or items belonging 
 to two or more of said classes: 
 
 6 
 6 
 
 
 6 
 
 
 
 of a value of $50 or less and more than 
 $20. 
 
 
 
 
 
 Yes.. 
 Yes 
 
 2 
 
 
 
 
 
 Selling or otherwise wrongfully disposing of 
 horse, arms, ammunition, accouterments, 
 equipment, clothing, or other property 
 issued for use in the military service, or 
 items belonging to two or more of said 
 classes: 
 
 6 
 
 
 
 
 
 Of a value of $50 or less and more than $20 
 
 Yes 
 Yes 
 
 1 
 
 5 
 
 
 
 
 
 
 
 
 
 85 
 
 Found drunk: 
 
 At formation for or at— 
 
 
 
 
 
 
 Drill 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Stable duty 
 
 
 
 
 
 
 
 5 
 
 
 
 
 
 6 
 
 
 6 
 
 
 
 On duty as — 
 
 
 
 
 
 
 
 
 Cook 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 20 
 
 
 
 
 
 
 
 
 
 
 Noncommissioned officer in charge 
 of quarters. 
 
 
 
 
 
 
 
 
 
 
 
COUBTS-MAKTIAL PUNISHMENTS. 
 
 Abticle I — Continued. 
 
 165 
 
 
 Offenses. 
 
 Punishments. 
 
 I 
 
 o 
 
 <D 
 
 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- 
 feiture 
 of pay. 
 
 
 Years. 
 
 Months. 
 
 Days. 
 
 Months. 
 
 Days. 
 
 86 
 
 
 
 
 6 
 1 
 
 3 
 
 
 
 
 
 Leaving before regularly relieved from or- 
 
 sleeping on post, sentinel. 
 Using a provoking or reproachful speech or 
 
 gesture to another. 
 
 Yes 
 
 1 
 
 
 
 
 on 
 
 
 3 
 
 
 f)3 
 
 Yes 
 
 Yes 
 
 Yes 
 
 Yes 
 Yes 
 
 Yes 
 
 20 
 
 5 
 10 
 
 20 
 10 
 
 
 
 Assault: 
 
 
 
 
 
 
 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. . . 
 Manslaughter: 
 
 Involuntary, in the commission of an un- 
 lawful act not amounting to a felony, 
 or in the commission of a lawful act 
 which might produce death, in an un- 
 lawful manner, or without due cau- 
 tion or circumspection. 
 
 Voluntary, upon a sudden quarrel or 
 heat of passion. 
 
 6 
 
 
 
 
 
 Yes 
 Yes. . 
 Yes 
 
 Yes., . 
 
 Yes 
 Yes.. . 
 Yes 
 
 Yes 
 Yes 
 
 1 
 
 5 
 3 
 
 * 
 
 10 
 
 5 
 10 
 5 
 
 1 
 5 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 M 
 
 Forging or counterfeiting a signature, 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. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 °fi 
 
 6 
 3 
 3 
 
 
 6 
 3 
 3 
 
 
 
 
 
 
 
 
 Allowing a prisoner to receive or obtain 
 
 intoxicating liquor. 
 Appearing in civilian clothing without 
 
 authority. 
 Appearing in unclean uniform, or not in 
 
 prescribed uniform, or in uniform worn 
 
 otherwise than in manner prescribed. 
 
 
 
 
 
 
 
 10 
 
 
 
 
 1 
 
 3 
 
 6 
 6 
 6 
 
 1 
 
 1 
 
 3 
 3 
 
 
 1 
 
 3 
 6 
 
 
 
 
 
 
 
 
 
 
 
 
 Attempting to escape from confinement 
 
 Attempting to strike or attempting other- 
 wise to assult a sentinel in the execution 
 of his duty. 
 Behaving in aninsubordinate or disrespect- 
 ful manner toward a sentinel in the execu- 
 tion of his duty. 
 ■ Breachof restriction (other than quarantine) 
 to command, quarters, station, or camp. 
 
 Yes... 
 
 
 
 
 
 
 
 6 
 1 
 
 1 
 
 3 
 3 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Concealing, destroying, mutilating, obliter- 
 ating, or removing willfully and unlawfully 
 a public record, or taking and carrying 
 away a public record with intent to con- 
 ceal, destroy, mutilate, obliterate, remove, 
 or steal the same. 
 
 Destroying, willfully, public property: 
 
 Yes.. 
 Yes 
 
 3 
 
 
 
 6 
 6 
 
 
 
 
 
 Yes 
 
 
 
 
 
 
 Of a value of $50 or less, and more than 
 $20. 
 
 Yes... 
 Yes 
 
 1 
 
 5 
 
 
 
 
 
 
 1 
 
166 
 
 MANUAL FOB COURTS-MARTIAL. 
 Article I — Continued. 
 
 Punishments. 
 
 Dis- 
 honor- 
 able dis 
 charge, 
 forfeiture 
 
 of all 
 pay aud 
 allow- 
 ances due 
 and to 
 become 
 due. 
 
 Confinement at hard 
 labor. 
 
 For- 
 feiture 
 of two- 
 thirds 
 pay per 
 month. 
 
 Years. Months. Days. 
 
 Months. 
 
 For- 
 feiture 
 of pay. 
 
 Days. 
 
 Discharging, through carelessness, afirearm . 
 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. 
 
 Drunk, prisoner found 
 
 Failing to obey a lawful order: 
 
 Of a superior officer 
 
 Of a noncommissioned officer ,. 
 
 Of a sentinel 
 
 Failing to pay a Just debt under 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. 
 
 Yes. 
 
 15 
 
 Yes. 
 
 Yes. 
 
 Yes. 
 Yes. 
 
 Yes. 
 Yes. 
 
 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 
 false pretenses: 
 When the amount obtained is $20 or less. 
 When the amount obtained is $50 or less 
 
 and more than $20. 
 When the amount obtained is more than 
 $50. 
 Refusing to submit to medical or dental 
 
 treatment. 
 Refusing to submit to a surgical operation. . 
 Sodomy and other unnatural crimes 
 
 Yes. 
 Yes. 
 
 Yes. 
 Yes. 
 
 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. 
 
COURTS-MARTIAL — PUNISHMENTS. 
 Aetiole I — Continued. 
 
 167 
 
 
 Offenses. 
 
 Punishments. 
 
 1 
 
 o 
 
 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- 
 feiture 
 of pay. 
 
 % 
 
 Years. 
 
 Months. 
 
 Days. 
 
 Months. 
 
 Days. 
 
 M> 
 
 Unclean accouterment, arm, clothing, 
 equipment, or other military property, 
 found with. 
 
 Using insulting language toward a sentinel 
 in tiae execution of his duty. 
 
 
 
 1 
 3 
 
 
 1 
 3 
 
 
 
 
 
 
 
 Yes 
 
 5 
 
 
 
 Violation of condition of parole by general 
 prisoner. 
 
 3 
 
 
 
 
 
 
 
 
 
 
 Article II. 
 
 EQUIVALENTS. 
 
 Section 1. Subject to the limitations set forth elsewhere in this order, sub- 
 stitutions for punishments specified in Article I thereof are authorized at the 
 discretion of the court, at the rates indicated in the following table of 
 equivalents : 
 
 Forfeiture. 
 
 Confinement 
 at hard labor. 
 
 Detention. 
 
 Hard labor 
 without con- 
 finement. 
 
 1 day's pay... 
 
 
 1J days' pay... 
 
 1J 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. 
 
 (o) 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. 
 
 (6) Detention of pay in an amount greater than two-thirds of his pay for 
 three months. 
 
 (c) Hard labor without confinement for a period greater than three months. 
 
 Article IV. 
 
 NONCOMMISSIONED OFFICERS. 
 
 Section 1. 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 FOR 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 days, 
 authorized substitution considered, adjudge, in addition to the punishments 
 otherwise authorized, reduction against a noncommissioned officer or against 
 a private, first class. 
 
 Article V. 
 
 PREVIOUS 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, which 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. 
 
 Article VI. 
 
 DISHONORABLE DISCHARGE. 
 
 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. 
 
 Article VII. 
 
 EFFECT AND APPLICATION OF THIS ORDER. 
 
 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- 
 
COUBTS-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. 
 
 Article VIII. 
 
 ADMINISTRATIVE BTJLES. 
 
 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. 
 
 Woodbow 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 (k) 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. 
 
 (6) The summary court will at the beginning of each trial, in 
 the order of such trial, give to and enter in the proper place on the 
 charges in the case a serial number. 
 
 (c) The procedure of and before summary courts-martial will, 
 so far as practicable, be identical with that prescribed for general 
 courts-martial. In the trial of a case the summary court 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 (i) that he may be punished as explained to him. 
 
 In any such case he will also, in the manner below stated, make 
 such impartial investigation, if any, as the doing of justice may ap- 
 pear to require. 
 
 (<?) 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 COTTRTS-MARTTAL. 
 
 such 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, before arriving at 
 a finding, assure himself, by inquiry of the accused, that he has no 
 further testimony to offer and no further statement to make. 
 
 (/) 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. 
 
 (h) In any case of conviction he will, as soon as trial is concluded, 
 impose sentence and record it in the proper place upon the charges. 
 
 («) In the event of a finding of not guilty of all the charges and 
 specifications he will record an acquittal instead of a sentence. 
 
 (k) Having recorded his findings and an acquittal or sentence, he 
 will subscribe his name, rank, and organization as summary court, and 
 then without delay transmit the record of trial to the appointing 
 authority. 
 
 Section III. 
 
 PROCEDURE ON REVISION. 
 
 352. Of general or special courts-martial. — The procedure of general 
 or special courts-martial when reconvened for the purpose of revising 
 their action or correcting their records will in general be as indicated 
 by the form of record of proceedings on revision. (Appendix 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. 
 
CHAPTEE XV. 
 COURTS-MARTIAL— RECORDS OF TRIAL. 
 
 Section I: General courts-martial: Paga 
 
 354. Record required — now 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 
 
 (&) In detail 174 
 
 (c) Record of revision 177 
 
 (d) Clemency recommendation , 177 
 
 Section II: Special courts-martial: 
 
 358. Form and substance, (a) to (h) 177 
 
 359. Number of copies 178 
 
 360. Not indexed : : 178 
 
 361. Briefed 178 
 
 362. Bound ; 178 
 
 Section III: Summary courts-martial: 
 
 363. Form and substance 178 
 
 Section IV: Correction of records of trial: 
 
 364. Records of general or special courts-martial 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 
 
 (&) Carbon copy 179 
 
 367. By appointing authority 179 
 
 (a) Records of trial by general courts-martial 179 
 
 (5) 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 the judge advo» 
 
 173 
 
174 MANUAL FOB COURTS-MARTIAL. 
 
 cate, by reason of bis 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. 
 
 (5) 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 
 
 5. 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 OOURTS-MABTIAL. 
 
 21. That after a plea of guilty the presidenln- 
 
 (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; 
 
 (&) 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 publication to the court, together with the title of the 
 publication, the edition' thereof, and the proper page number. 
 
 30. In a proper case, that the accused had no testimony, or no 
 further testimony, to offer or no statement to make, or both. 
 
 31. That when the accused did not testify or make a statement 
 the president explained to him in eourt 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. 
 
 358. 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. 
 
 (o) 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).) 
 70844°— 16 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. 
 
 (A) The record will, at the end, contain sufficient space for the 
 action of the reviewing authority. If necessary for this purpose, an 
 extra sheet will be included. 
 
 359. Number of copies. — One copy only of the record will be pre- 
 pared. 
 
 360. Not indexed. — The record will not be indexed. 
 
 361. Briefed. — The record will be briefed as prescribed for the 
 record of a general court-martial. 
 
 362. Bound. — The record will be securely bound. The method of 
 binding is not prescribed, but it must be such as will securely fasten 
 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- MAKTIAL — 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. 
 
 (b) 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-martial. — 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 FOR 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 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 de- 
 stroyed. 
 
 (c) Records of trial by 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 by summary courts-martial. — The report of 
 trial by summary court (copy of record of trial) will, with the least 
 practicable delay after action has been taken on the sentence, be com- 
 pleted and transmitted to the officer exercising general court-martial 
 jurisdiction over the command, there to 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 action by the reviewing 
 authority, a record of trial by court-martial is lost or destroyed, a 
 new record of trial in the case will, if practicable, be prepared and 
 will become the record of trial in the case. Such new record will, 
 however, only be prepared when the extant original notes or other 
 sources are such as to enable the preparation of a complete and ac- 
 curate record of the case. In any case of loss of a record of trial by 
 court-martial the summary court, judge advocate, or other proper 
 person will fully inform the appointing authority as to the facts and 
 as to the action, if any, taken. 
 
CHAPTEE XVI. 
 
 COURTS-MARTIAL— ACTION BY APPOINTING OR 
 SUPERIOR AUTHORITY. 
 
 Section 1: Action on the proceedings: Page. 
 
 369. Appointing authority 182 
 
 370. Record of action by appointing authority 182 
 
 371. Sentence not effective until approved 182 
 
 372. Effect of approval and disapproval 182 
 
 373. Manner of approval 182 
 
 374. The officer commanding for the time being. 183 
 
 375. Action when accused is transferred to another department 183 
 
 376. Appointing authority must act in person 183 
 
 377. Powers incident to power to approve 184 
 
 378. Confirmation of sentences 185 
 
 379. Powers incident to power to confirm 185 
 
 380. Mitigation 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-MARTIAL. 
 
 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 \mtil 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 proceedings. 
 
 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- 
 
COUETS-MARTIAL — APPOINTING OE SUPEBIOE 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 FOE COURTS-MARTIAL. 
 
 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 rinding 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 
 
 (b) 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. 
 
 (b) Breach of peace (disorder). 
 
 (2) Assault with intent to commit murder. 
 
 (a) Any of the minor degrees of assault. 
 
 (3) Battery. 
 
 (a) Assault. 
 
 (4) Murder. 
 
 (a) Manslaughter. 
 
 Voluntary. 
 Involuntary. 
 
 (b) Attempt to commit. 
 
 (c) Felonious assault. 
 
 (d) Assault and battery. 
 
 (5) Mayhem. 
 
 (a) Assault with intent to commit. 
 
 (b) Assault and battery. 
 
 (6) Rape. 
 
 (a) Assault with intent to commit rape. 
 (o) Assault and battery. 
 
 (c) Assault. 
 
 (7) Robbery. 
 
 (a) Assault with intent to rob. 
 
 (b) Larceny from the person. 
 
 (c) Assault and battery. 
 
 (d) Assault. 
 
 (8) Desertion. 
 
 (a) Attempt to desert. 
 (6) Absence without leave. 
 
 (9) Willful disobedience of superior officer. 
 
 (a) Failure to obey. 
 
COUBTS-MARTIAL — APPOINTING OB SUPEEIOB AUTHORITY. 185 
 
 (10) Willful disobedience of noncommissioned officer. 
 
 (a) Failure to obey. 
 
 (11) Refusal to receive and keep prisoners. 
 
 (a) Failure to receive and keep. 
 
 (12) Quitting post to plunder or pillage. 
 
 (a) Quitting post. 
 
 (13) Drunk on duty. 
 
 (a) Drunk. 
 
 (14) Conduct unbecoming an officer and gentleman. 
 
 (a) Conduct to the prejudice of good order and military 
 discipline. 
 
 378. Confirmation of sentences. — In the following cases confirmation 
 by the President is required before the sentence of a court-martial is 
 carried into execution: 
 
 (a) Any sentence respecting a general officer. 
 
 (&) Any sentence extending to the dismissal of an officer except 
 that in time of war a sentence extending to the 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. 
 
 (c) Any sentence extending to the suspension or dismissal of a 
 cadet, and 
 
 (d) Any sentence of death, except in the cases of persons convicted 
 in time of war of murder, rape, mutiny, desertion, or as spies, and in 
 such excepted cases a sentence of death may be carried into execution 
 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 
 
 (6) The power to confirm or disapprove the whole or any part of 
 the sentence, (A. W. 49.) 
 
186 MANUAL FOB 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 sentences 
 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 
 
 385. 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 
 stated. — Where the reviewing authority disapproves a sentence for 
 desertion he should indicate in his review whether his disapproval 
 is based upon his belief that the evidence does not show an intent to 
 desert, or is for some other reason that assumes the accused was 
 guilty as charged. The reason for so indicating the grounds of his 
 disapproval is to enable the Quartermaster Corps to decide whether 
 the pay and allowances due at date of alleged desertion should be 
 forfeited and whether the reward paid for apprehending the deserter, 
 and the expenses incurred by the Government in transporting him 
 from point of apprehension, delivery, or surrender to the station 
 of his company or detachment or to the place of trial, including 
 the cost of transportation of the guard, should be set against the 
 alleged deserter's pay, under A. R. 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 FOR COTJRTS-MARTTAL. 
 
 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 OB 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 
 
 place of confinement.] 
 
 395. Forms for action on sentence by reviewing authority. — (See 
 Appendix 10.) 
 
 396. When confinement in a penitentiary may be directed. — Except for 
 desertion in time of war, repeated desertion in time of peace, and 
 mutiny, no person shall under the sentence of a court-martial be 
 punished by confinement in a penitentiary unless an act or omission 
 of which he is convicted is recognized as an offense of a civil nature 
 by some statute of the United States, or at the common law as the 
 same exists in the District of Columbia, or by way of commutation 
 of a death sentence, and unless also the period of confinement author- 
 ized and adjudged by such court-martial is one year or more: Pro- 
 vided, That when a sentence of confinement is adjudged by a court- 
 martial upon conviction of two or more acts or omissions any one 
 of which is punishable under these articles by •confinement in a peni- 
 tentiary, the entire sentence of confinement may be executed in a 
 penitentiary : Provided, further, That penitentiary confinement here- 
 by authorized may be served in any penitentiary directly or indi- 
 rectly under the jurisdiction of the United States : Provided further, 
 That persons sentenced to dishonorable discharge and to confine- 
 ment not in a penitentiary shall be confined in the United States 
 Disciplinary Barracks or elsewhere as the Secretary of War or the re- 
 viewing authority may direct, but not in a penitentiary. (A. W. 42.) 
 
 [Note. — For a full statement of the law relating to penitentiary confinement, 
 the War Department policy with reference to the segregation of general prison- 
 ers convicted of offenses punishable with penitentiary confinement and require- 
 ments placed upon appointing authorities in stating the law applicable where 
 such confinement is directed, see Chap. XIII, Sec. II, pars. 337, 339, and 341.] 
 
 397. When confinement in Disciplinary Barracks will be directed. — 
 The United States Disciplinary Barracks at Fort Leavenworth, 
 Kans., or one of its branches will be designated as the place of con- 
 finement of all general prisoners other than residents of Porto Rico, 
 the Canal Zone, Hawaiian Islands, or the Philippine Islands who are 
 to be confined for six months or more and who 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 FOE 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 parole 
 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 OB SUPERIOR AUTHORITY. 191 
 
 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- 
 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 and of the action had thereon. 
 
CHAPTEE 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 without leave: 
 
 409. Fifty-eighth article 201 
 
 I. Desertion 202 
 
 II. Attempting to desert 202 
 
 410. Fifty-ninth article 202 
 
 I. Advising desertion 203 
 
 II. Persuading desertion 203 
 
 III. Assisting desertion 203 
 
 411. Sixtieth article 204 
 
 I. Retaining a deserter 204 
 
 412. Sixty-first article 204 
 
 I. Absence without leave 205 
 
 Section III: Disrespect: Insubordination: Mutiny: 
 
 413. Sixty-second article 206 
 
 I. Disrespect toward the President, etc 207 
 
 414. Sixty-third article 207 
 
 I. Disrespect toward superior officer 208 
 
 415. Sixty-fourth article 208 
 
 I. Assaulting superior officer 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 
 
 70S44"— 16 14* 193 
 
194 MANUAL FOB COURTS-MARTIAL. 
 
 Section III: Disrespect: Insubordination: Mutiny — Continued. 
 
 417. Sixty-sixth article — Continued. Page. 
 
 III. Joining in a mutiny (or sedition) 214 
 
 TV. 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 220 
 
 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. Page. 
 
 431. Eighty-first article 234 
 
 I. Eelieving 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 
 
 II. 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 FOB COUBTS-MABTIAL. 
 
 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 
 i-uch enlistment, shall be punished as a court-martial may direct. 
 
 Definitions and Principles. 
 
 A fraudulent enlistment is an enlistment procured by means of a 
 willful 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. FRATTDTJLENT ENLISTMENT. 
 
 (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. 
 
 (c) That enlistment was procured by such misrepresentation or 
 concealment. 
 
 (d) That under such enlistment the accused received either pay 
 or allowances, or both, as alleged. 
 
 (e) Where a soldier enlists without a discharge (see twenty-ninth 
 article), the proof should include the fact that at the time of the 
 alleged enlistment the accused was a soldier, and that the enlistment 
 was entered into without a regular discharge from the former enlist- 
 ment. 
 
 FIFTY-FIFTH ARTICLE. 
 
 406. Any officer who knowlingly enlists or musters Into tbe military service 
 any person whose enlistment or muster in is prohibited by law, regulations, or 
 orders shall be dismissed from the service or suffer such other punishment as a 
 court-martial may direct. 
 
198 manual for courts-martial. 
 
 Definitions and Principles. 
 
 See the terms of the article. 
 
 The prohibited enlistment must be knowingly made, i. e., it must be 
 shown that the accused knew that the person enlisted or mustered in 
 by him was within the prohibited class. 
 
 Knowingly includes not only a certainty of belief but also such a 
 degree of belief as the ordinarily prudent man acts upon. 
 
 The enlistment or muster in of the person must be at the time pro- 
 hibited by law or by regulations or orders that were operative as to 
 the accused. 
 
 This excludes cases where the enlistment or muster in was pro- 
 hibited by regulations or orders of the existence of which the accused 
 was not aware or at the time chargeable with knowledge. 
 
 Analysis and Pkoof. 
 
 The article applies only to officers. 
 
 The article defines two offenses which may be treated under one 
 heading as follows : 
 
 I. UNLAWFUL ENLISTMENT (or MUSTER In). 
 
 PKOOF. 
 
 (a) The enlistment or muster in by the accused officer of the per- 
 son named, as alleged. 
 
 (b) That such person was within the classes whose enlistment or 
 muster in were prohibited at the time of such enlistment or muster in. 
 
 (c) That the accused knew this at the time of the enlistment or 
 muster in of such person. 
 
 FIFTY-SIXTH ARTICLE. 
 
 407. * * * Any officer who knowingly makes a false muster of man or 
 animal, or who signs or directs or allows the signing of any muster roll knowing 
 the same to contain a false muster or false statement as to the absence or pay of 
 an officer or soldier, or who wrongfully takes money or other consideration 
 on mustering in a regiment, company, or other organization, or on signing 
 muster rolls, or who knowingly musters as an officer or soldier a person who 
 is not such officer or soldier, shall be dismissed from the service and suffer 
 such other punishment as a court-martial may direct. 
 
 Definitions and Principles. 
 
 See the terms of the article for requirements as to muster rolls and 
 definition of the offenses. 
 
 Muster has been defined as the assembling, inspecting, entering 
 upon the formal rolls, and officially reporting as a component part of 
 the command of persons or public animals. (Winthrop, p. 852.) 
 
punitive articles. 199 
 
 Analysis and Proof. 
 
 The article applies only to officers. 
 
 The article defines a number of offenses which may be treated 
 under the following heads: 
 
 I. Making false muster. 
 
 II. Signing, directing, or allowing the signing of false muster rolls. 
 
 III. Taking money or other consideration on muster or signing 
 muster rolls. 
 
 IV. Mustering as an officer or soldier one who is not. 
 
 I. MAKING FALSE MUSTER. 
 PROOF. 
 
 (a) That the muster of a certain man or animal was made by the 
 accused- officer, as alleged. 
 
 (b) That the muster was false as alleged. 
 
 (c) That the accused officer knew this at the time of making the 
 muster. 
 
 II. SIGNING, DIRECTING, OR ALLOWING THE SIGNING OF FALSE MUSTER 
 
 ROLLS. 
 
 PROOF. 
 
 (a) That the accused officer signed the muster roll or directed or 
 allowed the signing of the muster roll as alleged. , 
 
 (b) That such muster roll was false in certain particulars as alleged. 
 (<?) That the accused officer knew this at the time he signed the 
 
 roll or directed or allowed it to be signed as alleged. 
 
 m. TAKING MONET OR OTHER CONSIDERATION ON MUSTER OR SIGNING 
 
 MUSTER ROLLS. 
 
 PROOF. 
 
 {a) That the accused officer made the muster of the organization 
 or signed the muster rolls as alleged. 
 
 (b) That he accepted money or other consideration as a compensa- 
 tion or reward for making the muster or signing the muster rolls. 
 
 (c) That the taking of such money or other consideration was 
 wrongful — that is, without legal excuse. 
 
 IV. MUSTERING AS AN OFFICER OR SOLDIER ONE WHO IS NOT. 
 
 PROOF. 
 
 (a) That the accused officer mustered as an officer or soldier a 
 certain person, as alleged. 
 
200 MANUAL FOB, COTTETS-MAETIAL. 
 
 (Z>) That the person so mustered was not such officer or soldier. 
 (c) That the accused knew this when he made the muster. 
 
 FIFTY-SEVENTH ARTICLE. 
 
 408. Every officer commanding a regiment, an independent troop, battery, or 
 company, or a garrison, shall, in the beginning of every month, transmit through 
 the proper channels, to the Department of War, an exact return of the same, 
 specifying the names of the officers then absent from their posts, with the 
 reasons for and the time of their absence. Every officer whose duty it is to 
 render to the War Department or other superior authority a return of the state 
 of the troops under his command, or of the arms, ammunitions, clothing, funds, 
 or other property thereunto belonging, who knowingly makes a false return 
 thereof shall be dismissed from the service and suffer such other punishment 
 as a court-martial may direct. And any officer who, through neglect or design, 
 omits to render such return shall be punished as a court-martial may direct. 
 
 Definitions and Principles. 
 
 See the terms of the article, the penal part of which applies broadly 
 to "every officer whose duty it is to render to the War Department 
 or other superior authority a return of the state of the troops under 
 his command, or of the arms, ammunition, clothing, funds, or other 
 property thereunto belonging." 
 
 Analysis and Proof. 
 
 The article applies to commanding officers only. 
 The article defines two offenses : 
 
 I. Making false returns. 
 
 II. Omitting to render returns. 
 
 I. MAKING FALSE RETURNS. 
 
 As to knowingly, see remarks under fifty-fifth article. 
 
 (a) That the accused officer was a commanding officer, as alleged. 
 
 (b) That it became his duty as such to render to a certain superior 
 authority a certain return as specified. 
 
 (c) That he complied with such duty, and that the return so made 
 was false in certain particulars, as alleged. 
 
 (d) That the accused officer knew that the return was false at the 
 time of making it. 
 
 II. OMITTING TO RENDER RETURNS. 
 
 The term " neglect " involves the idea of culpability and includes 
 the case of an officer who, knowing the return to be due, fails to 
 render it through remissness or procrastination. 
 
PUNITIVE ARTICLES. 201 
 
 (a) That the accused officer was a commanding officer as alleged. 
 
 (o) That it became his duty as such to render to a certain superior 
 authority a certain return as specified. 
 
 (c) That he omitted through neglect or design to render such 
 return. 
 
 Section II. 
 DESERTION— ABSENCE WITHOUT LEAVE. 
 
 FIFTY-EIGHTH ARTICLE. 
 
 409. Any person subject to military law who deserts or attempts to desert the 
 service of the United States shall, if the offense be committed in time of war, 
 suffer death or such other punishment as a court-martial may direct, and, if 
 the offense be committed at any other time, any punishment, excepting death, 
 that a court-martial may direct. 
 
 Definitions and Principles. 
 
 Desertion is absence without leave accompanied by the intention 
 not to return. 
 
 Both elements are essential to the offense. The offense becomes 
 complete when the person absents himself without authority from 
 his place of service with intent not to return thereto. A prompt 
 repentance and return are no defense, nor is it a. defense that the 
 deserter at the time of departure intended to report for duty else- 
 where. Thus, where a soldier leaves his post intending never to 
 go back unless a certain event happens, or leaves his post with such 
 intent and reports at another post, he is a deserter; but unless such 
 intent exists at some time the soldier .can not be a deserter whether 
 his purpose is to stay away a definite or indefinite length of time. 
 Where a soldier, without having been discharged, again enlists in 
 the Army or in the Militia in the service of the United States, such 
 enlistment is, by the twenty-ninth article, made sufficient evidence 
 of desertion. In such a case, proof of the intent permanently to 
 stay. away from his former place of service and of the status of 
 absence without leave therefrom are unnecessary. 
 
 Analysis and Proof. 
 
 The article includes all persons subject to military law. See 
 Article 2. 
 
 The article defines two offenses, as follows : 
 
 I. Desertion. 
 
 II. Attempting to desert. 
 
202 MANUAL FOB COURTS-MARTIAL. 
 
 I. DESERTION. 
 
 (a) That the accused absented himself, or remained absent with- 
 out authority, from his place of service, as alleged. 
 
 (b) That he intended, at the time of absenting himself or at some 
 time during his absence, to remain away permanently from such 
 place. 
 
 (c) That his absenee was of a duration and was terminated as 
 alleged. 
 
 (d) That his act was done, if so alleged, in the execution of a 
 certain conspiracy, or in the presence of a certain outbreak of 
 Indians, or of a certain unlawful assemblage which his organization 
 was opposing, or in time of war where the court will not take judi- 
 cial notice of the existence of a status of war. 
 
 (e) Where the soldier enlisted without a discharge (see twenty- 
 ninth article), that the accused was a soldier in a certain organiza- 
 tion of the Army as alleged ; and that, without being discharged from 
 such organization, he again enlisted in the Army, Navy, Marine 
 Corps, or some foreign army as alleged. In this case proof of the 
 absence without; leave and of the intention not to return become 
 unnecessary. 
 
 II. ATTEMPTING TO DESERT. 
 
 An attempt to desert is an overt act other than mere preparation 
 toward accomplishing a purpose to desert. 
 
 Usually the endeavor of the accused toward getting away will be 
 frustrated by an agency independent of his own will; but once the 
 attempt is made a turning back by the accused of his own accord 
 does not obliterate the offense. An instance of the offense is: A 
 soldier intending to desert hides himself in an empty freight car on 
 the post, intending to effect his escape from the post by being taken 
 out in the car. 
 
 PROOF. 
 
 (a) That the accused made the attempt by doing the overt act or 
 acts alleged. 
 
 (b) That he intended to desert at the time of doing such act or acts. 
 
 (e) That his act was done, if so alleged, in the execution of a cer- 
 tain conspiracy, or in the presence of a certain outbreak of Indians, 
 or a certain unlawful assemblage which his organization was oppos- 
 ing, or in time of war where the court will not take judicial notice 
 of the existence of the status specified. 
 
 FIFTY-NINTH ARTICLE. 
 
 410. Any person subject to military law who advises or persuades or know- 
 ingly assists another to desert the service of the United States shall, if the 
 
PUNITIVE ARTICLES. 203 
 
 offense be committed in time of war, suffer death, or such other punishment as 
 a court-martial may .direct, and, if the offense be committed at any other time, 
 any punishment, excepting death, that a court-martial may direct. 
 
 Definitions and Principles. 
 
 See the definition of desertion under the next preceding article. 
 
 As to knowingly, see remarks under the fifty-fifth article. 
 
 The offenses of persuading and assisting desertion are not com- 
 plete unless the desertion occurs ; but the offense of advising is com- 
 plete when the advice is given, whether the person advised deserts 
 or not. 
 
 It is not necessary that the accused act alone in giving the advice 
 or assistance, or in the persuasion; and he may act through other 
 persons in committing the offenses. 
 
 Analysis and Proof. 
 
 The article applies to all persons subject to military law. See 
 article 2. 
 
 The article defines three offenses, as follows: 
 
 I. Advising desertion. 
 
 II. Persuading desertion. 
 
 III. Assisting desertion. 
 
 i. advising desertion. 
 
 (a) That the accused advised a person subject to military law to 
 desert the service as alleged. 
 
 (b) That the act was done, if so alleged, in time of war, where 
 the court will not take judicial notice of the status of war. 
 
 II. PERSUADING DESERTION. 
 PROOF. 
 
 (a) That the accused used persuasion to induce a person subject 
 to military law to desert the service as alleged. 
 
 (5) That the person whom he persuaded deserted as alleged, and 
 was induced to do so by such persuasion. See proof of desertion 
 in the next preceding article, items (a) and (&). 
 
 (c) That the act was done, if so alleged, in time of war, where 
 the court will not take judicial notice of the status of war. 
 
 III. ASSISTING DESERTION. 
 
 (a) That the accused knowingly assisted a person subject to mil- 
 itary law to desert the service as alleged. 
 
204 MANUAL FOR COURTS-MARTIAL. 
 
 (5) That the person given such assistance deserted as alleged. 
 See proof of desertion in the next preceding article, items (a) and 
 
 (c) That the act was done, if so alleged, in time of war, where 
 the court will not take judicial notice of the status of war. 
 
 SIXTIETH ARTICLE. 
 
 411. Any officerwho, after having discovered that a soldier in his command is 
 a deserter from the military or naval service or from the Marine Corps, retains 
 such deserter in his command without informing superior authority or the com- 
 mander of the organization to which the deserter belongs shall be punished as 
 a court-martial may direct. 
 
 Definitions and Principles. 
 
 See definition of desertion under article 58. 
 
 Discovered does not imply a certainty on the one hand or a mere 
 suspicion on the other. It implies such a belief as the ordinarily 
 prudent officer would act upon. 
 
 Analysis and Proof. 
 
 The article applies only to commanding officers. 
 The article defines one offense: 
 
 I. RETAINING a deserter. 
 
 (a) That the accused officer exercised a certain command as al- 
 leged. 
 
 (&) That while so in command he discovered that a certain soldier 
 in his command was a deserter from the military or naval service, or 
 from the Marine Corps, as alleged. 
 
 (c) That such soldier was in fact such a deserter. See proof of 
 desertion under fifty-eighth article, items (a) and (6). 
 
 (d) That he retained such deserter in his command without in- 
 forming superior authority or the commanding officer of the organi- 
 zation to which the deserter belongs, as alleged. 
 
 SIXTY-FIRST ARTICLE. 
 
 412. Any person subject to military law who fails to repair at the fixed time to 
 the properly appointed place of duty, or goes from the same without proper 
 leave, or absents himself from his command, guard, quarters, station, or camp 
 without proper leave, shall be punished as a court-martial may direct. 
 
punitive articles. 205 
 
 Definitions and Principles. 
 
 The article is designed to cover every case not elsewhere provided 
 for where any person subject to military law is through his own fault 
 not at the place where he is required to be at a time when he should 
 be there. 
 
 The first part of the article — that relating to properly appointed 
 place. of duty — applies whether such place is appointed as a rendez- 
 vous for several or for one only. Thus, it would apply in the case 
 of a soldier failing to report as the kitchen police or leaving such 
 duty after reporting. 
 
 A soldier turned over to the civil authorities upon application is 
 not punishable under this article for the period he is held by them 
 under such delivery. So, also, where a soldier is absent with leave 
 and is held, tried, and acquitted by the civil authorities, his status 
 does not change to absence without leave. But where the soldier is 
 absent without leave when tried, although acquitted, or being absent 
 with leave is convicted and held beyond the expiration of his pass, 
 or being absent without leave is unable to return through sickness or 
 lack of transportation facilities, or other disabilities, the period of 
 the absence without leave will include the time he is so detained ; but, 
 in view of the fact that the absence during such time is enforced, it 
 would be appropriate not to consider the length of such detention for 
 the purpose of administering punishment in the case. 
 
 In computing the length in days of a period of absence for the 
 purpose of determining the maximum punishment for an absence 
 without leave under this article periods of 24 hours are considered 
 one day. Thus, a sQtdier who absents himself from 11.59 p. m. one 
 day to 12.01 a. m. the next is absent only a fraction of a day as far 
 as the maximum punishment order is concerned, although the period 
 of absence cover parts of two calendar days. 
 
 Analysis and Proof. 
 
 The article applies to any person subject to military law. See 
 Article 2. 
 
 The article defines a number of offenses which may be treated 
 under the general term "Absence without leave." 
 
 I. ABSENCE WITHOUT LEAVE. 
 PEOOF. 
 
 (1) Where the accused fash to appear at or goes from a place of 
 duty.. 
 
 (a) That a certain authority appointed a certain time and place 
 for a certain duty by the accused, as alleged. 
 
206 MANUAL FOR COURTS-MARTIAL. 
 
 (b) That he failed to report to such place at the proper time, or 
 having so reported went from the same without authority from any 
 one competent to give him leave to do so. 
 
 (2) Where the accused is charged with absenting himself without 
 proper leave. 
 
 (a) That the accused absented himself from his command, guard, 
 quarters, station, or camp for a certain period, as alleged. 
 
 (b) That such absence was without authority from any one com- 
 petent to give him leave. 
 
 Section III. 
 
 DISRESPECT— INSUBORDINATION— MUTINY. 
 
 sixty-second article. 
 
 413. Any officer who uses contemptuous or disrespectful words against the 
 President, Vice President, the Congress of the United States, the Secretary of 
 War, or the governor or legislature of any State, Territory, or other possession 
 of the United States in which he is quartered shall be dismissed from the serv- 
 ice or suffer such other punishment as a court-martial may direct. Any other 
 person subject to military law who so offends shall be punished as a court- 
 martial may direct. 
 
 Definitions and Principles. 
 
 The contemptuous or disrespectful words, as used in this article, 
 cover language disrespectful and contemptuous in themselves, such 
 as abusive epithets, denunciatory or contumelious expressions, or 
 intemperate or malevolent comments upon official or personal acts, 
 etc., or words disrespectful or contemptuous because of the connec- 
 tion in which and the circumstances under which they are used. 
 
 It is essential that a person against whom such words are used be 
 in one of the offices named at the time ; but it is immaterial whether 
 the words are spoken against him in his official or private capacity. 
 
 The truth or falsity of the statements is, as a rule, immaterial. 
 
 Trials for offenses covered by this article have usually been for 
 the use of " contemptuous or disrespectful words against the Presi- 
 dent," or the Government mainly as represented by the President. 
 The deliberate employment of denunciatory or contumelious lan- 
 guage in regard to the President, whether spoken in public or pub- 
 lished, or conveyed in a communication designed to be made public, 
 has,. in repeated cases, been made the subject of charges and trial 
 under this article. (Digest, p. 120 ; Winthrop, p. 872.) 
 
 The language used must be disrespectful or contemptuous. Adverse 
 criticism of the Executive expressed in emphatic language in the heat 
 of political discussion, but not apparently intended to be personally 
 disrespectful, should not be made the basis of trial under this article. 
 (Idem.) 
 
punitive articles. 207 
 
 Analysis and Proof. 
 
 The article applies to any person subject to military law. 
 The article defines a number of offenses which may be treated under 
 the general term of " disrespect toward the President, etc." 
 
 I. DISRESPECT TOWARD THE PRESIDENT, ETC. 
 
 (a) That the accused used certain contemptuous or disrespectful 
 words against the President, or other of the authorities mentioned 
 in the article, as alleged. 
 
 (b) Where such words are not contemptuous or disrespectful in 
 themselves that the words were used under certain circumstances or 
 in a certain connection, or that a certain intended meaning gave them 
 the character of contemptuous or disrespectful words, as alleged. 
 
 SIXTY-THIRD ARTICLE. 
 
 414. Any person subject to military law who behaves himself with disrespect 
 toward his superior officer shall be punished. as a court-martial may direct. 
 
 Definitions and Principles. 
 
 The • disrespectful behavior contemplated by this article is such as 
 detracts from the respect due to the authority and person of a superior 
 officer. It may consist in acts or language, however expressed. 
 
 It is not essential that the disrespectful behavior be in the presence 
 of the superior, but in general it is considered objectionable to hold 
 one accountable under this article for what was said or done by him 
 in a purely private conversation. 
 
 The officer toward whom the disrespectful behavior was directed 
 must have been the superior of the accused at the time of the acts 
 charged ; but by superior is not necessarily meant a superior in rank, 
 as a line officer, though inferior in rank, may be the commanding 
 officer, and thus the superior of a staff officer, such as a surgeon. 
 
 Disrespect by words may be conveyed by opprobrious epithets or 
 other contumelious or denunciatory language. (Winthrop, p. 874.) 
 
 Disrespect by acts may be exhibited in a variety of modes — as neg- 
 lecting the customary salute, by a marked disdain, indifference, inso- 
 lence, impertinence, undue familiarity, or other rudeness in the pres- 
 ence of the superior officer. (Winthrop, p. 875.) 
 
 It is not essential that the behavior be intentional, and it is imma- 
 terial that only facts were stated ; but where the person who did the 
 acts or spoke the words did not know that the person against whom 
 they were directed was his superior officer, such ignorance is a 
 defense. 
 
208 
 
 manual foe courts-martial. 
 Analysis and Proof. 
 
 The article applies to any person subject to military law. See 
 Article 2. 
 
 The article defines one offense, that is, disrespect toward a superior 
 officer. 
 
 I. DISRESPECT TOWARD A SUPERIOR OFFICER. 
 
 PEOOF. 
 
 (<z) That the accused did or omitted to do certain acts or spoke 
 certain words toward a certain officer, as alleged. 
 
 (b) That the behavior involved in such acts, omissions, or words 
 was that under certain circumstance or in a certain connection or 
 with a certain meaning, as alleged. 
 
 (c) That the officer toward whom the acts, omissions, or words 
 were directed was the accused's superior officer. 
 
 SIXTY-FOURTH ARTICLE. 
 
 415. Any person subject to military law who, on any pretense whatsoever, 
 strikes his superior officer or draws or lifts up any weapon or offers any violence 
 against him, being in the execution of his office, or willfully disobeys any law- 
 ful command of his superior officer, shall suffer death or such other punishment 
 as a court-martial may direct. 
 
 Definitions and Principles. 
 
 The phrase " on any pretense whatsoever " is not to be understood 
 as excluding as a defense the fact that the striking was done in 
 legitimate self-defense or in the discharge of some duty, such as is 
 enjoined by the sixty-seventh article. 
 
 By " superior officer " is meant not only the commanding officer of 
 the accused, whatever may be the relative rank of the two, but any 
 other commissioned officer of rank superior to that of the accused. 
 That the accused did not know the officer to be his superior is 
 available as a defense. 
 
 Analysis and Proof. 
 
 The article applies to any person subject to military law. See 
 Article 2. 
 
 The article embraces offenses indicated by the following diagram : 
 
 Strikes 
 
 or 
 Draws 
 On any pretense I or \ Any weapon against 
 Any person whatsoever j Lifts up 
 subject to I or 
 
 military | Offers any violence against 
 
 law who ( or 
 
 Willfully disobeys any lawful command of his superior officer. 
 
 His superior officer 
 being in the ex- 
 ecution of hia 
 office. 
 
PUNITIVE ABT1CLES. 209 
 
 These offenses may be treated under the following heads : 
 
 I. Assaulting superior officer. 
 
 II. Disobeying superior officer. 
 
 I. ASSAULTING SUPERIOR OFFICER. 
 
 The word " strikes " means an intentional blow with anything by 
 which a blow can be given. 
 
 The phrase "draws or lifts up any weapon against" covers any 
 simple assault committed in the manner stated. 
 
 The offense consisting either in a mere threatening of violence 
 without anything further being proposed, or- in an attempt to do 
 violence which is not effectuated. The weapon chiefly had in view 
 by the word " draw " is no doubt the sword ; the term might, however, 
 apply to a bayonet in a sheath, or to a pistol; and the drawing of 
 either in an aggressive manner, or the raising or brandishing of the 
 same minaciously in the presence of the superior and at him is the 
 sort of act contemplated. The raising in a threatening manner of a 
 firearm (whether or not loaded) or of a club, or any implement or 
 thing by which a serious blow could be given, would be within the 
 description — "lifts up." (Winthrop, p. 879.) 
 
 The phrase " offers any violence against him " comprises any form 
 of battery or of mere assault not embraced in the preceding more 
 specific terms " strikes " and " draws or lifts up." But the violence 
 where not executed must be physically attempted or menaced. A 
 mere threatening in words would not be an offering of violence in the 
 sense of the article. (Winthrop, pp. 879 and 880.) 
 
 An officer is in the execution of his office " when engaged in any 
 act or service required or authorized to be done by him by statute, 
 regulation, the order of a superior or military usage." (Winthrop, 
 p. 881.) 
 
 PBOOF. 
 
 (a) That the accused struck a certain officer with or without a 
 certain thing or weapon or drew or lifted up a certain weapon 
 against him or offered violence against him, as alleged. 
 
 (6) That such officer was the accused's superior officer at the time. 
 
 (c) That such superior officer was in the execution of his office 
 at the time, as alleged. 
 
 II. DISOBEYING SUPERIOR OFFICER. 
 
 The willful disobedience contemplated is such as shows an inten- 
 tional defiance of authority, as where a soldier is given an order 
 
 70844°— 16 15* 
 
210 MANUAL FOK COURTS-MARTIAL. 
 
 by an officer to do or cease from doing a particular thing at once 
 and refuses to do what is ordered or simply omits to do it. 
 
 Where the order is operative in futuro a mere neglect to comply 
 with it "through heedlessness, remissness, or forgetfulness is an 
 offense chargeable not in general under this article, but under the 
 "general article" (Winthrop, p. 884), and the same is true of a 
 mere refusal to obey such an order before the time set for its 
 execution. 
 
 The order must relate to military duty and, be one which the 
 superior officer is authorized under the circumstances to give the 
 accused. Disobedience of an order which has for its sole object the 
 attainment of some private end or which is given, for the sole pur- 
 pose of increasing the penalty for an offense which it is expected the 
 accused may commit is not punishable under this article. 
 
 An accused can not be convicted of a violation of this article if 
 the order was in fact unlawful; but, unless the order is plainly 
 illegal, the disobedience of it is punishable under the general article, 
 i. e., the ninety-sixth article. 
 
 To justify from a military point of view a military inferior in 
 disobeying the order of a superior, the order must be one requiring 
 something to be done which is palpably a breach of law and a crime 
 or an injury to a third person, or is of a serious character (not in- 
 volving unimportant consequences only) and if done would not be 
 susceptible of being righted. An order requiring the performance of 
 a military duty or act can not be disobeyed with impunity unless it 
 has one of these characteristics. 
 
 That obedience to a command involved a violation of the accused's 
 religious scruples is not a defense. 
 
 Failure to comply with the general or standing orders of a depart- 
 ment, district, post, etc., or with the Army Regulations, is not an 
 offense under this article, but under the ninety-sixth article; and 
 so of a nonperformance by a subordinate of any mere routine duty. 
 
 The form of the order is immaterial as is the method by which it 
 is transmitted to the accused; but the communication must amount 
 to an order and the accused must know that it is from his superior 
 officer; that is, a commissioned officer who is authorized to give the 
 order whether he is superior in rank to the accused or not. 
 
 (a) That the accused received a certain command from a certain 
 officer as alleged. 
 
 (b) That such officer was the accused's superior officer. 
 
 (c) That the accused willfully disobeyed such command. 
 
PUNITIVE ARTICLES. 
 
 211 
 
 SIXTY-FIFTH ARTICLE. 
 
 416. Any soldier who strikes or assaults, or who attempts or threatens to strike 
 or assault, or willfully disobeys the lawful order of a noncommissioned officer 
 while in the execution of his office, or uses threatening or insulting language, 
 or behaves in an insubordinate or disrespectful manner toward a noncommis- 
 sioned officer while in the execution of his office, shall be punished as a court- 
 martial may direct. 
 
 Definitions and Principles. 
 
 This article has the same general objects with respect to noncom- 
 missioned officers as the sixty-third and sixty-fourth articles have 
 with respect to commissioned officers, namely, to insure obedience to 
 their lawful orders, and to protect them from violence, insult, or 
 disrespect. 
 
 The terms " willful disobedience," " lawful order," and " in the ex- 
 ecution of his office " are used in the same sense as in the sixty- fourth 
 article. 
 
 Analysis and Proof. 
 
 The article applies to enlisted men only. 
 
 The article embraces offenses indicated by the following diagram : 
 
 Any soldier who 
 
 Strikes 
 
 or 
 Assaults 
 
 or 
 Attempts 1 f Strike 
 
 or to i or 
 
 Threatens J l Assault 
 
 or 
 Willfully disobeys the 
 lawful order of 
 
 or 
 
 {Threatening language 
 or 
 Insulting language 
 or 
 
 Insubordinate manner 
 Behaves in an or 
 
 Disrespectful manner 
 
 A noncommissioned officer while in 
 the execution of his office. 
 
 Toward a noncommis- 
 sioned officer while 
 in the execution of 
 his office. 
 
 These offenses may be briefly treated under the following headings : 
 
 I. Assaulting a noncommissioned officer. 
 
 II. Disobeying a noncommissioned officer. 
 
 III. Using threating or insulting language or behaving in an 
 insubordinate or disrespectful manner toward a noncommissioned 
 officer. 
 
212 MANUAL FOR COURTS-MARTIAL. 
 
 I. ASSAULTING A NONCOMISSIONED OFFICER. 
 
 For definition of the offense, see ninety -third article, item IX. 
 
 The part of the article relating to assaults covers any unlawful 
 violence against a noncommissioned officer in the execution of his 
 office, whether such violence is merely threatened or is advanced in 
 any degree toward actual application. 
 
 (a) That the accused soldier struck a certain noncommissioned 
 officer with a certain thing, or assaulted, or attempted or threatened 
 to strike or assault him in a certain manner, as alleged. 
 
 (5) That such noncommissioned officer was at the time in the 
 execution of his office, as alleged. 
 
 II. DISOBEYING A NONCOMMISSIONED OFFICER. 
 
 (a) That the accused soldier received a certain command from a 
 certain noncommissioned officer, as alleged. 
 
 (b) That the noncommissioned officer was in the execution of his 
 office. 
 
 (c) That the accused soldier willfully disobeyed such command. 
 
 III. USING THREATENING OR INSULTING LANGUAGE OR BEHAVING IN AN 
 INSUBORDINATE OR DISRESPECTFUL MANNER TOWARD A NONCOMMIS- 
 SIONED OFFICER. 
 
 The phrase " while in the execution of his office " limits the appli- 
 cation of this part of the article to language and behavior within 
 sight or hearing of the noncommissioned officer toward whom it is 
 used ; the word " toward " not being used in the same sense as in the 
 sixty-third article. 
 
 (a) That the accused used certain language or did or omitted to 
 do Certain acts under certain circumstances, or in a certain manner 
 or with a certain intended meaning, as alleged. 
 
 (5) That such language or behavior was used toward, a certain 
 noncommissioned officer. 
 
 (c) That such noncommissioned officer was at the time in the 
 execution of his office, as alleged. 
 
PUNITIVE ARTICLES. 213 
 
 SIXTY-SIXTH ARTICLE. 
 
 417. Any person subject to military law who attempts to create or who begins, 
 excites, causes, or joins in any mutiny or sedition in any company, party, post, 
 camp, detachment, guard, or other command shall suffer death or such other 
 punishment as a court-martial may direct. 
 
 Definitions and Principles. 
 
 Mutmy imports collective insubordination, and necessarily in- 
 cludes some combination of two or more persons in resisting lawful 
 military authority. 
 
 Sedition implies the raising of commotion or disturbance against 
 the State; it is a revolt against legitimate authority and differs 
 from mutiny in that it implies a resistance to lawful civil power. 
 
 The concert of insubordination contemplated in mutiny or sedi- 
 tion need not be preconceived nor is it necessary that the act of 
 insubordination be active or violent. It may consist simply in a 
 persistent and concerted refusal or omission to obey orders or to 
 do duty with an insubordinate intent. 
 
 Analysis and Proof. 
 
 The article applies to any person subject to military law. 
 The article defines five offenses relating to mutiny and five relat- 
 ing to sedition. 
 
 I. Attempting to create a mutiny (or sedition). 
 
 II. Beginning a mutiny (or sedition). 
 
 III. Joining in a mutiny (or sedition). 
 
 IV. Exciting a mutiny (or sedition). 
 
 V. Causing a mutiny (or sedition). 
 
 I. attempting to create a mutiny or sedition. 
 
 An attempt to commit a crime is an act done with specific intent 
 to commit the particular crime and proximately tending to, but fall- 
 ing short of, its consummation. There must be an apparent possi- 
 bility to commit the crime in the manner specified. Voluntary 
 abandonment of purpose after an act constituting an attempt is 
 not a defense. 
 
 The intent which distinguishes mutiny or sedition is the intent 
 to resist lawful authority in combination with others. The intent 
 to create a mutiny or sedition may be declared in words, or, as in 
 all other cases, it may be inferred from acts done or from the 
 surrounding circumstances. 
 
214 MANUAL FOR COURTS-MARTIAL. 
 
 A single individual may harbor an intent to create a mutiny and 
 may commit some overt act tending to create a mutiny or sedition 
 and so be guilty of an attempt to create a mutiny or sedition, alike 
 whether he was joined by others or not, or whether a mutiny or sedi- 
 tion actually followed or not. 
 
 (a) An act or acts of accused which proximately tended to create 
 a certain intended (or actual) collective insubordination. 
 
 (&) A specific intent to create a certain intended (or actual) 
 collective insubordination. 
 
 (c) That the insubordination occurred or was intended to occur 
 in a company, party, post, camp, detachment, guard, or other 
 command. 
 
 II-III. BEGINNING OB JOINING IN A MUTINY. 
 
 There can be no actual mutiny or sedition until there has been an 
 overt act of insubordination joined in by two or more persons, and 
 so no person can be guilty of beginning or joining in a mutiny unless 
 an overt act of mutiny is proved. A person can not be guilty of 
 beginning a mutiny unless he is the first, or among the first, to 
 commit an overt act of mutiny; a person can not jom in a mutiny 
 without joining in some overt act. Hence presence of the accused 
 at the scene of mutiny is necessary in these two cases. 
 
 (a) The occurrence of certain collective insubordination in a com- 
 pany, party, post, camp, detachment, or other command. 
 
 (b) That the accused began or joined in the certain collective 
 insubordination. 
 
 IV-V. CAUSING OE EXCITING A MUTINY. 
 
 As in II and III, supra, no person can be guilty of causing or ex- 
 citing a mutiny unless an overt act of mutiny follows his efforts. 
 But a person may excite or cause a mutiny without taking personal 
 part in or being present at the demonstrations of mutiny which result 
 from his activities. 
 
 (a) The occurrence of certain collective insubordination in a cer- 
 tain company, party, post, camp, detachment, or guard, or other 
 command. 
 
 (b) Acts of the accused tending to create or excite the certain col- 
 lective insubordination. 
 
PUNITIVE ARTICLES. 215 
 
 SIXTY-SEVENTH ARTICLE. 
 
 418. Any officer or soldier who, being present at any mutiny or sedition, does 
 not use his utmost endeavor to suppress the same, or knowing or having reason 
 to believe that a mutiny or sedition is to take place, does not without delay give 
 information thereof to his commanding officer shall suffer death or such other 
 punishment as a court-martial may direct, 
 
 Definitions and Principles. 
 
 See pages 213, 214. 
 
 Analysis and Proof. 
 
 The article applies only to officers and soldiers. It defines two 
 offenses relating to mutiny and two relating to sedition. 
 
 I. Being present at a mutiny (or sedition), failing to use the 
 utmost endeavor to suppress it. 
 
 It. Having knowledge or reason to believe that a mutiny (or sedi- 
 tion) is to take place, failing to give information thereof to his 
 commanding officer without delay. 
 
 I. FAILURE TO SUPPRESS MUTINY (OR SEDITION). 
 
 Mere presence countenancing such collective insubordinations and 
 disturbances as mutinies, riots, and seditions has been considered 
 criminal for over a century. The article goes a step further and 
 requires of officers and soldiers their utmost endeavors to suppress 
 such disorders. 
 
 One is not present at a mutiny unless an act or acts of collective 
 insubordination occur in his presence. 
 
 Utmost endeavor is a relative term. The rule governing the lawful 
 use of force to suppress crime or arrest wrongdoers is that as much 
 force may be used as is reasonably necessary to accomplish the desired 
 purpose, and no more. This article has been construed as authoriz- 
 ing and requiring the most extreme measures — even to the using of 
 a dangerous weapon and the taking of life — where such extreme 
 measures are reasonably necessary. But all the circumstances of 
 necessity are to be considered. Means which in war and before the 
 enemy would be not only justified, but laudable, might, in time of 
 peace, render the person employing them criminally and civilly liable 
 for abuse of authority. 
 
 (a) The occurrence of an act or acts of collective insubordination 
 in the presence of the accused. 
 
 (b) Acts or omissions of the accused which constitute a failure to 
 use his utmost endeavor to suppress such acts. 
 
216 MANUAL, FOR COURTS-MARTIAL. 
 
 II. FAILURE TO GIVE INFORMATION OF MUTINY (OR SEDITION). 
 
 Where circumstances known to the accused are such as would have 
 caused a reasonable man in the same or similar circumstances to 
 believe that a mutiny or sedition was impending, these circumstances 
 will be sufficient to charge the accused with such reason to believe as 
 will render him culpable under the article. 
 
 It is not a necessary element of the crime that the impending 
 mutiny or sedition materialize. 
 
 " Delay " imports the lapse of an unreasonable time without action. 
 
 The expression "commanding officer" here includes in its mean- 
 ing any officer having a military command over the person who has 
 knowledge or reason to believe that a mutiny or sedition is im- 
 pending. 
 
 (a) That the accused knew that a mutiny or sedition was impend- 
 ing or that he knew of circumstances that would have induced, in a 
 reasonable man, a belief that a mutiny or sedition was impending. 
 
 (5) Acts or omissions of the accused which constitute a failure 
 or unreasonable delay in informing his commanding officer of his 
 knowledge or belief. 
 
 SIXTY-EIGHTH ARTICLE. 
 
 419. All officers and noncommissioned officers have power to part and quell all 
 quarrels, frays, and disorders among persons subject to military law and to 
 order officers who take part in the same into arrest, and other persons subject 
 to military law who take part in the same into arrest or confinement, as cir- 
 cumstances may require, until their proper superior officer is acquainted there- 
 with. And whosoever, being so ordered, refuses to obey such officer or non- 
 commissioned officer or draws a weapon upon or otherwise threatens or does 
 violence to him shall be punished as a court-martial may direct. 
 
 Definitions and Principles. 
 
 A fray is a fight in a public place to the terror of the people, in 
 which acts of violence occur or dangerous weapons are exhibited or 
 threatened to be used. All persons aiding or abetting a fray are 
 principals. The word "frays" is thus. seen to be somewhat restric- 
 tive, but the words " quarrels " and " disorders " include any dis- 
 turbance of a contentious character from a mere war of words to 
 a rout or riot. 
 
 To quell is to quiet, allay, abate, or put down. 
 
 It is immaterial under the article whether the officer or noncom- 
 missioned officer who essays to part or quell quarrels, frays, and dis- 
 orders is on a duty status or not, as it is immaterial whether the 
 
PUNITIVE ARTICLES. 217 
 
 persons engaged in the disorder are superior to him in rank 
 or not. 
 
 Analysis and Proof. 
 
 The punitive portion of the article applies to all persons subject 
 to military law. It is designed to enforce the authority of officers 
 or noncommissioned officers to part and quell certain disorders and 
 to order the participants into confinement or arrest. 
 
 The article defines four crimes: 
 
 I. Eefusal to obey an order of an officer or noncommissioned officer 
 placing the accused in arrest or confinement. 
 
 II. Upon being ordered into arrest or confinement, drawing a 
 weapon on the officer or noncommissioned officer giving the order. 
 
 III. Upon being ordered into arrest or confinement, threatening 
 the officer or noncommissioned officer giving the order. 
 
 IV. Upon being ordered into arrest or confinement, doing vio- 
 lence to the officer or noncommissioned officer giving the order. 
 
 I. DISOBEDIENCE OF ORDERS INTO ARREST OR CONFINEMENT. 
 
 It should appear that the power conferred by the article was being 
 exercised for the purpose stated, and therefore the charges and proof 
 should refer to the order given during the disorder. It should be 
 made to appear that the accused heard or understood the order and 
 knew that the person giving it was an officer or noncommissioned 
 officer. 
 
 (a) That the accused was a participant in a certain quarrel, fray, 
 or disorder occurring among persons subject to military law. 
 
 (I) That during the disorder a certain officer or noncommissioned 
 officer ordered the accused into arrest (if accused is an officer) or 
 into arrest or confinement (if accused is a person subject to military 
 law other than an officer) , with a view to quell or part the disorder. 
 
 (c) That the accused refused to obey. 
 
 II, III, IV. THREATENING, DRAWING A WEAPON UPON, OR OFFERING VIO- 
 LENCE TO, AN OFFICER OR NONCOMMISSIONED OFFICER. 
 
 The proof of the second, third, and fourth crimes defined by the 
 article should follow in form and essentials the proof required under 
 the first crime (disobedience of order into arrest or confinement, 
 supra), except that instead of proving a refusal to obey (par. 3, 
 supra), drawing a weapon, making a threat, or doing violence 
 must be proved as the consummation of the particular offense. The 
 word threat as here used includes any menacing action, either by 
 gesture or by words. 
 
218 MANUAL FOB COURTS-MARTIAL. 
 
 Section IV — Arrest; Confinement. 
 
 SIXTY-NINTH ARTICLE. 
 
 420. An officer charged with crime or with a serious offense under these arti- 
 cles shall be placed in arrest by the commanding officer, and in exceptional cases 
 an officer so charged may be placed in confinement by the same authority. A. 
 soldier charged with crime or with a serious offense under these articles shall 
 be placed in confinement, and when charged with a minor offense he may be 
 placed in arrest. Any other person subject to military law charged with 
 crime or with a serious offense under these articles shall be placed in confine- 
 ment or in arrest, as circumstances may require; and when charged with a 
 minor offense such person may be placed in arrest. Any person placed in ar- 
 rest under the provisions of this article shall thereby be restricted to his bar- 
 racks, quarters, or tent, unless such limits shall be enlarged by proper authority. 
 Any officer who breaks his arrest or who escapes from confinement before he is 
 set at liberty by proper authority shall be dismissed from the service or suffer ■ 
 such other punishment as a court-martial may direct ; and any other person 
 subject to military law who escapes from confinement or who breaks his arrest 
 before he is set at liberty by proper authority shall be punished as a court- 
 martial may direct. 
 
 DEFINITIONS AND PRINCIPLES. 
 
 The arrest of an officer has been compared to an enlargement on 
 bail, the security being the officer's commission. It is for this rea- 
 son that the punishment may include dismissal. The distinction be- 
 tween arrest and confinement lies in the difference between the kinds 
 of restraint imposed. In arrest the restraint is moral restraint im- 
 posed by the orders fixing the limits of arrest, or by the terms of the 
 article. Confinement imports some physical restraint. 
 
 Analysis and Proof. 
 
 The article applies to all persons subject to military law. The 
 article defines two crimes : 
 
 I. Breach of arrest. 
 
 II. Escape from confinement. 
 
 I. BREACH OF ARREST. 
 
 The offense is committed when the person restrained infringes the 
 limits set by orders, or by the sixty-ninth article of war, and the 
 intention or motive that actuated him is immaterial to the issue of 
 guilt, though, of course, proof of inadvertence or bona -fide mistake 
 is admissible to guide the court in assessing punishment. The un- 
 lawfulness of the arrest is a valid defense, but innocence of the ac- 
 cusation upon which the arrest is imposed is entirely irrelevant. 
 
PUNITIVE ARTICLES. 219 
 
 (a) That the accused was duly placed in arrest. 
 
 (&) That before he was set at liberty by proper authority he trans- 
 gressed the limits fixed by the sixty-ninth article of war or by the 
 orders of proper authority. 
 
 II. ESCAPE FROM CONFINEMENT. 
 
 An escape may be either with or without force ot artifice, and 
 either with or without the consent of the custodian. Any com- 
 pleted casting off of the restraint of confinement, before being set 
 at liberty by proper authority, is an escape from confinement, and a 
 lack of effectiveness of the physical restraint imposed is immaterial 
 to the issue of guilt. It seems, however, that an escape is not com- 
 plete until the prisoner has, momentarily at least, freed himself from 
 the restraint of his confinement, so, if the movement toward escape 
 is opposed, or before it is completed an immediate pursuit ensues, 
 there will be no escape until opposition is overcome, or pursuit is 
 shaken off. In cases where the escape is not completed the offense 
 should be charged as an attempt under the ninety-sixth article of 
 war. 
 
 (a) That the accused was placed in confinement. 
 
 (b) That he freed himself from the restraint of his confinement 
 before he had been set at liberty by proper authority. 
 
 SEVENTY-FIRST ARTICLE. 
 
 421. No provost marshal or commander of a guard shall refuse to receive or 
 keep any prisoner committed to his charge by an officer belonging to the forces of 
 the United States, provided the officer committing shall, at the time, deliver 
 an account in writing, signed by himself, of the crime or offense charged against 
 the prisoner. Any officer or soldier so refusing shall be punished as a court- 
 martial may direct. 
 
 Definitions and Principles. 
 
 The words " commander of a guard " include a commander of 
 any rank or grade, and hence a noncommissioned officer or private. 
 The term " any prisoner " includes civil as well as military prisoners 
 who are committed according to the terms of the article. A provost 
 marshal or commander of a guard may receive a prisoner without 
 an account of the charge against him or other due formality of com- 
 mitment, but he must receive the prisoner where the required ac- 
 count in writing accompanies the commitment. 
 
 A mere name or description of the offense charged in common par- 
 lance when written and signed by the committing officer is a suffi- 
 cient " account in writing." 
 
220 manual fob courts-martial. 
 
 Analysis and Proof. 
 
 The article applies to officer and soldiers. 
 The article defines one crime : 
 
 I. REFUSING TO RECEIVE OR KEEP A PRISONER COMMITTED •WITH A WRITTEN 
 ACCOUNT OF THE OFFENSE CHARGED AGAINST HIM SIGNED BT THE 
 OFFICER COMMITTING THE PRISONER. 
 
 PBOOF. 
 
 (a) That the accused was a provost marshal or commander of a 
 guard. 
 
 (b) That a certain prisoner was committed to his charge by a 
 certain officer belonging to the forces of the United States. 
 
 (c) That, at the time of commitment, the committing officer de- 
 livered to the accused a written account of the crime or offense 
 charged against the prisoner, which account was signed by the 
 committing officer. 
 
 (d) That the accused refused to receive or keep the prisoner. 
 
 SEVENTY-SECOND ARTICLE. 
 
 422. Every commander of a guard to whose charge a prisoner is committed 
 shall, within twenty-four hours after such confinement, or as soon as he is re- 
 lieved from his guard, report in writing to the commanding officer the name of 
 such prisoner, the offense charged against him, and the name of the officer com- 
 mitting him ; and if he fails to make such report he shall be punished as a 
 court-martial may direct. 
 
 Definitions and Principles. 
 
 The term " commander of a guard " includes commanders of any 
 rank or grade. 
 
 The term " prisoner " includes civilian as well as military prisoners. 
 
 The term " commanding officer " imports the commander to whom 
 the guard report is properly made. 
 
 Analysis and Proof. 
 
 The article applies to officers and soldiers. It defines one offense : 
 
 i. failure to render a report as prescribed. 
 
 (a) That the accused was commander of a certain guard. 
 (5) That a prisoner was committed to his charge. 
 (<?) That the accused — 
 
 1. Failed to make any report at all, or, 
 
 2. That the report rendered was not in writing, or, 
 
PUNITIVE ABTICLES. 221 
 
 3. That no report was rendered within 24 hours after confinement, 
 or as soon as accused was relieved from his guard, or, 
 
 4. That the report failed to set forth one or more of the particulars 
 prescribed. 
 
 SEVENTY-THIRD ARTICLE. 
 
 423. Any person subject to military law who, without proper authority, re- 
 leases any prisoner duly committed to his charge, or who through neglect or 
 design suffers any prisoner so committed to escape, shall be punished as a court- 
 martial may direct. 
 
 Definitions and Principles. 
 
 The article describes three long-recognized common-law crimes. 
 
 It looks to the punishment of any person who is responsible for 
 the unauthorized release or escape of a prisoner duly committed to 
 his charge, and hence any member of a guard, party, escort, and 
 convoy, or any person subject to military law to whose charge a 
 prisoner is committed may be guilty of an offense under this article; 
 Where a prisoner is committed to the commander of a guard, party, 
 escort, or convoy, and is released by, or escapes from, a subordinate 
 or subordinates to whom the commander has duly delegated custody 
 of the prisoner, or to whom that custody duly falls as an incident of 
 duty, all will be responsible under this article, except those who 
 can show that the escape or release occurred under circumstances 
 against which they could not reasonably guard. 
 
 The words -" any prisoner " import both military and civilian 
 prisoners. 
 
 A person may receive a prisoner in his capacity as commander or 
 member of a guard, or he may be burdened with such a responsibility 
 as a personal trust. In the former case, the lowest authority compe- 
 tent to release the prisoner is the chief of the command, of the guard 
 by which the prisoner is held. In the latter case, the authority who 
 has imposed the trust, and who was competent to do so, is the lowest 
 " proper authority " to order a release. 
 
 While a commander of the guard must receive a prisoner properly 
 committed by any officer, the power of the committing officer ceases 
 as soon as he has committed the prisoner, and he is not a " proper 
 authority " to order a release. 
 
 An officer is not responsible under this article unless the prisoner 
 was duly committed, but, as was pointed out in the discussion of the 
 seventy-first article, an officer may receive a prisoner not committed 
 in strict compliance with the terms of that article or other law, and 
 if, having so received a prisoner, he releases such prisoner, or suffers 
 him to escape, he may be held to answer, under the ninety-sixth 
 article, for any dereliction of duty that may be predicated on his 
 conduct in the case. 
 
222 manual foe coubts-martial. 
 
 Analysis and Proof. 
 
 The article applies to any person subject to military law. 
 The article defines three crimes: 
 
 I. Releasing a prisoner without proper authority. 
 
 II. Suffering a prisoner to escape through neglect. 
 
 III. Suffering a prisoner to escape through design. 
 
 I. RELEASING A PRISONER WITHOUT PROPER AUTHORITY. 
 
 A release imports a removal of restraint from the prisoner in 
 which the custodian is the sole actor, and in which the prisoner takes 
 no initiative. 
 
 PEOOF. 
 
 (a) That a certain prisoner was duly committed to the- charge of 
 the accused. 
 
 (5) That the accused released him without proper authority. 
 
 n. SUFFERING A PRISONER TO ESCAPE THROUGH NEGLECT. 
 
 The word " neglect " is here used in the sense of the word " negli- 
 gence." 
 
 Negligence is a relative term. It is defined in law as the" absence of 
 due care. The legal standard of care is that which would have been 
 taken by a reasonably prudent man in the same or similar circum- 
 stances. This test looks to the standard required of persons acting 
 in the capacity in which the accused was acting. Thus, if the 
 accused is an officer, the test will be, "How would a reasonably 
 prudent officer have acted ? " If the circumstances were such as 
 would have indicated to a reasonably prudent officer that a very 
 high order of care was required to prevent escape, then the accused 
 must be held to a very high order of care. The test is thus elastic, 
 logical, and just. 
 
 A prisoner can not be said to have escaped until he has overcome 
 the opposition that restrained him, and shaken off immediate pur- 
 suit. Once he has done these things, the fact that he returns, is 
 taken in a fresh pursuit, is killed, or dies, will not relieve the person 
 accused of guilt under this article. 
 
 (a) That a certain prisoner was duly committed to the charge of 
 the accused. 
 
 (b) That the prisoner escaped. 
 
 (c) That the accused did not take such care to prevent escape as 
 a reasonably prudent person, acting in the capacity in which the 
 
PUNITIVE ARTICLES. 223 
 
 accused was acting, would have taken in the same or similar circum- 
 stances. (This constitutes neglect.) 
 
 (d) That the escape was the proximate result of the neglect of 
 the accused. 
 
 III. SUFFERING A PRISONER TO ESCAPE THROUGH DESIGN. 
 
 In law a wrongful act is designed when it is intended or when it 
 results from conduct so shockingly and grossly devoid of care as to 
 leave room for no inference but that the act was contemplated as an 
 extremely probable result of the course of conduct followed. Thus, 
 on a charge of suffering a prisoner to escape through design, evidence 
 of gross negligence may be received as probative of design. 
 
 It sometimes happens that a prisoner has been permitted larger 
 limits than should have been allowed, and an escape is consummated 
 without hindrance. It does not at all follow that such an escape is 
 to be considered as designed. The conduct of the responsible cus- 
 todian is to be examined in the light of all the circumstances of the 
 case, the heinousness of the crime with which the prisoner is charged, 
 the notoriety of the prisoner's guilt, the probability of his return, 
 and the intention and motives of the custodian. 
 
 (a) That a certain prisoner was duly committed to the charge of 
 the accused. 
 
 (5) That the prisoner escaped. 
 
 (e) 1. Acts of the accused tending to permit escape. 2. Acts of 
 the accused probative of a design to suffer the escape. 
 
 (d) That as a result of these acts and of this design the prisoner 
 escaped. 
 
 SEVENTY-FOURTH ARTICLE. 
 
 424. When any person subject to military law, except one who is held by the 
 military authorities to answer, or who is awaiting trial or result of trial, or 
 who is undergoing sentence for a crime or offense punishable under these 
 articles, is accused of a crime or offense committed within the geographical 
 limits of the States of the Union and the District of Columbia, and punishable 
 by the laws of the land, the commanding officer is required, except in time of 
 war, upon, application duly made, to use his utmost endeavor to deliver over 
 such accused person to the civil authorities, or to -aid the officers of justice in 
 apprehending and securing him, in order that he may be brought to trial. Any 
 commanding officer who upon such application refuses or willfully neglects, 
 except in time of war, to deliver over such accused person to the civil au- 
 thorities or to aid the officers of justice in apprehending and securing him shall 
 be dismissed from the service or suffer such other punishment as a court- 
 martial may direct. 
 
 When, under the provisions of this article, delivery is made to the civil 
 authorities of an offender undergoing sentence of a court-martial, such delivery, 
 if followed by conviction, shall be held to interrupt the execution of the sen- 
 
224 MANUAL FOB COUBTS-MABTIAL. 
 
 tence of the court-martial, and the offender shall be returned to military cus- 
 tody, after having answered to the civil authorities for his offense, for the 
 completion of the said court-martial sentence. 
 
 Definitions and Principles. 
 
 i. refusing to deliver accused persons. 
 
 The words " commanding officer," as here used, import the officer 
 who is chief of the complete integral place, body of troops, or de- 
 tachment, wherein the person accused is serving at the time appli- 
 cation is duly made. The words "upon application duly made" 
 prescribe a condition precedent to responsibility. They are inserted 
 to prevent the possibility of false arrests, and to enable the com- 
 manding officer to satisfy himself of the true official character of 
 him who makes the application, of the subsistence of an actual accu- 
 sation against the person sought, and of the locus of the charged 
 crime or offense. 
 
 The commanding officer should require that the application show 
 that the crime or offense is alleged to have been committed within 
 the geographical limits of the States of the Union and the District 
 of Columbia. A sufficient form of application will be a written com- 
 munication setting forth the fact of such an accusation of a crime 
 or offense committed within the prescribed limits as would subject 
 the accused person to arrest by the civil authorities for the pur- 
 poses of trial, or that a warrant for such arrest has issued, and a 
 request that the commanding officer deliver the person accused to the 
 civil authorities or assist them in apprehending or securing him. 
 When the military jurisdiction has actively attached in any of the 
 ways prescribed in the article, the commanding officer may, but he is 
 not required to make the prescribed delivery. 
 
 II. REFUSING TO AID IN APPREHENDING ACCUSED PERSONS. 
 
 The commanding officer is required not only to deliver the. person 
 accused but to aid in apprehending and securing him. The article 
 therefore contemplates cases where, after apprehension by either 
 the military or civil authorities, an application is duly made to a 
 commanding officer for his assistance in securing a person subject to 
 military law and accused of crime. 
 
 " Utmost endeavor " is to be understood in a reasonable sense with 
 reference to the circumstances of the particular case. Thus, if the 
 accused is not within military control, as where he is absent as a 
 deserter, nothing more can be required of a commander than to fur- 
 nish civil authority such information of his whereabouts and the 
 prospect of his return as may be available. 
 
 While commanding officers are enjoined to use their utmost en- 
 deavor in carrying out the provisions of this law, a mere inadvertent 
 neglect to take some necessary step toward delivery, apprehension, 
 or securing of the person accused will not constitute an offense under 
 this article, which contemplates only refusals and willful neglects 
 to act. 
 
punitive articles. 225 
 
 Analysis and Proof. 
 
 The punitive portion of the article applies only to officers, but the 
 obligation to deliver or assist in apprehending and securing rests on 
 all persons subject to military law. 
 
 The article defines two offenses : 
 
 I. Refusing or willfully neglecting to deliver an accused person. 
 
 II. Refusing or willfully neglecting to aid in apprehending and 
 securing an accused person. 
 
 The essentials of proof are similar in both cases. 
 
 PKOOF. 
 
 (a) That the accused was the commanding officer of a certain 
 integral place, body of troops, or detachment. 
 
 (h) That a certain person under his command stood accused of a 
 certain crime or offense, committed within the geographical limits 
 of the States of the Union and the District of Columbia. 
 
 (<?) That application was duly made to the accused officer by a 
 person in proper civil authority — 
 
 1. To deliver the accused person to the civil authorities; or 
 
 2. To aid the officers of justice in apprehending and securing, or 
 either, the accused person. 
 
 (d) Acts or omissions of the accused officer which constitute a 
 refusal or a willful neglect to deliver the accused person or to aid 
 in apprehending or securing him. 
 
 Section V. 
 
 WAR OFFENSES. 
 
 SEVENTY-FIFTH ARTICLE. 
 
 425. Any officer or soldier who misbehaves himself before the enemy, runs 
 away, or shamefully abandons or delivers tip any fort, post, camp, guard, or 
 other command which it is his duty to defend, or speaks words inducing others 
 to do the like, or casts away his arms or ammunition, or quits his post or colors 
 to plunder or pillage, or by any means whatsoever occasions false alarms in 
 camp, garrison, or quarters, shall suffer death or such other punishment as a 
 court-martial may direct. 
 
 Definitions and Principles. 
 
 Misbehavior is by no means confined to acts of cowardice. It is 
 a general term, and as here used it renders culpable under this 
 article any conduct by an officer or soldier not conformable to the 
 standard of behavior before the enemy set by the history of our arms. 
 Running away is but a particular form of misbehavior specifically 
 made punishable by this article. 
 70844°— 16 16* 
 
226 MANUAL FOR COURTS-MARTIAL. 
 
 " The enemy " imports any hostile body that our forces may be 
 opposing and well includes a rebellious mob, a band of renegades, or 
 a tribe of Indians. 
 
 Analysis and Proof. 
 
 The article applies only to officers and soldiers. It defines seven 
 offenses : 
 
 I. Misbehavior before the enemy. 
 
 II. Running away before the enemy. 
 
 III. Shamefully abandoning or delivering up any command. 
 
 IV. Speaking words inducing others to misbehave, run away, or 
 abandon or deliver up any command. 
 
 V. Casting away arms or ammunition. 
 
 VI. Quitting post or colors to plunder or pillage. 
 
 VII. Occasioning false alarms. 
 
 i. misbehavior before the enemy. 
 
 Under this clause may be charged any act of treason, cowardice, 
 insubordination, or other unsoldierly conduct committed in the pres- 
 ence of the enemy. 
 
 (a) That the accused was serving in the presence of an enemy. 
 
 (b) Acts or omissions of the accused not conformable to the stand- 
 ard of soldierly conduct set by the history of our arms. 
 
 n. RUNNING AWAY BEFORE THE ENEMY. 
 
 (a) That the accused was serving in the presence of an enemy. 
 (i) That he misbehaved himself by running away. 
 
 IH. SHAMEFULLY ABANDONING OR DELIVERING UP ANY COMMAND. 
 
 While the word " abandon " is broad enough to include a case in 
 which a soldier or a subordinate officer leaves a fort, post, guard, or 
 command which it is his duty to defend, it is probable that this clause 
 of the article looks only to offenses by the commanding officers of 
 such commands, and that abandonment by a subordinate should be 
 charged as misbehavior or running away. 
 
 The words " deliver up " are synonymous with the word " sur- 
 render." 
 
 The surrender or abandonment of a command by an officer charged 
 with its defense can only be justified by the utmost necessity and 
 extremity, such as the exhaustion of provisions or water, the ab- 
 sence of hope of relief, and the certainty or extreme probability 
 
PUNITIVE ARTICLES. 227 
 
 that no further effort could prevent the place, with its garrison, 
 their arms, and magazines, from presently falling into the hands of 
 the enemy. Unless such absolute necessity is shown, the conclusion 
 must be that the surrender or abandonment was shameful within the 
 meaning of this article. 
 
 An officer's duty to defend may be imposed by orders or by the 
 circumstances in which he finds himself at a particular stage of 
 operations; but an officer will find less justification in abandoning a 
 post that he has been ordered to defend than in abandoning one that 
 he has decided to defend. He will have less justification in deliver- 
 ing up a post than in abandoning it, and in delivering up a post that 
 he has been ordered to defend he will have no justification at all 
 except such as can be found in proof that no further resistance was 
 possible. 
 
 (a) That the accused was charged by orders or by circumstances 
 with a duty to defend a certain fort, post, camp, guard, or other 
 command. 
 
 (b) That without justification he abandoned it or surrendered it. 
 
 IV. SPEAKING WORDS INDUCING OTHERS TO MISBEHAVE, RUN AWAY, OR 
 TO ABANDON OR DELIVER UP ANT COMMAND. 
 
 The words "to do the like" refer to the offenses of misbehavior 
 and running away, as well as to abandoning or delivering up a 
 command. 
 
 The inducement contemplated is verbal only, but it may include 
 any argument, persuasion, threat, language of discouragement or 
 alarm, or false or incorrect statement which may avail to bring about 
 an unnecessary surrender, retreat, or any misbehavior before the 
 enemy. The offense will not be complete, however, unless the words 
 spoken do induce some person other than the accused to misbehave, 
 run away, or abandon or surrender a command. It is to be noted, 
 however, that speaking words whose natural tendency is to induce 
 others to do any of these things may in itself constitute misbehavior 
 of the speaker within the meaning of the article, although the words 
 spoken induce no misconduct on the part of others. 
 
 (a) That some person other than the accused misbehaved in the 
 presence of the enemy or ran away or abandoned or delivered up any 
 command which it was his duty to defend. 
 
 (5) Words spoken by the accused which induced such action. 
 
228 MANUAL FOB COURTS-MARTIAL. 
 
 V. CASTING AWAT ARMS OR AMMUNITION. 
 
 (a) That the accused cast away certain arms or ammunition as 
 specified. 
 
 VI. QUITTING POST OR COLORS TO PLUNDER OR PILLAGE. 
 
 The word " post " includes any place of duty, whether permanently 
 or temporarily fixed. The term " colors " was used to include cases 
 where the offender's organization is moving, but the words " quits 
 his post," as here used, import any unauthorized leaving of that place 
 where the accused should be. 
 
 In proving this crime an intent to pillage or plunder must be 
 shown. The words " to pillage or plunder " may be properly para- 
 phrased " to seize and appropriate public or private property." The 
 offense is no less committed, though the quitting is by quasi authority, 
 as where soldiers quit the place where they should be to go forth 
 and maraud in company with an officer or noncommissioned officer. 
 
 The act is complete when the accused has left his post with the 
 described intent, although he may never have consummated his 
 design. 
 
 PEOOF. 
 
 (a) That the accused left his post of duty. 
 
 (&) That the intention of the accused in leaving was to seize and 
 appropriate private or public property. 
 
 VTI. OCCASIONING PAL8E ALARMS. 
 
 The article is intended as well to guard the repose and tranquillity 
 of troops as to avoid the ill effect on morale which must inevitably 
 follow needless excursions and alarms. The article contemplates 
 the spreading of false and disturbing rumors and reports as well 
 as the needless giving of such alarm signals as the beating of drums 
 and the blowing of trumpets. 
 
 The intent is immaterial. If the alarm was given, and it appears 
 that there was no material cause or occasion which should reasonably 
 justify a general alarm, the offense is complete. 
 
 PEOOF. 
 
 (a) That an alarm was occasioned in a certain camp, garrison, or 
 quarters. 
 
 (b) Conduct of the accused which occasioned the alarm. 
 
 (c) That there was no reasonable or sufficient justification in fact 
 for occasioning the alarm. 
 
PUNITIVE ARTICLES. 229 
 
 SEVENTT-SIXTH ARTICLE. 
 
 426. If any commander of any garrison, fort, post, camp, guard, or other com- 
 mand is compelled, by the officers or soldiers under his command, to give it up 
 to the enemy or to abandon it, the officers or soldiers so offending shall suffer 
 death or such other punishment as a court-martial may direct. 
 
 Definitions and Principles. 
 
 When the surrender of abandonment of a command is induced 
 by words spoken, the offense should be charged under the seventy- 
 fifth article. Where the surrender or abandonment is compelled by 
 acts rather than words, the charge should be laid under the present 
 article. 
 
 The offense here contemplated is very like that of a mutiny which 
 results in the surrender or abandonment of any command, but, unlike 
 mutiny, no concert of action is an essential element of this offense. 
 The offense is not complete until the command is abandoned or given 
 up to the enemy. The compulsion need not consist in the use of 
 actual violence or force. A refusal to obey orders or to do duty or 
 to participate in measures of defense would be as effective compul- 
 sion as if forcible restraint were resorted to. 
 
 Analysis and Proof. 
 
 The article applies to officers and soldiers. 
 The article defines one crime. 
 
 I. SUBORDINATES COMPELLING COMMANDER TO SURRENDER. 
 
 (a) That a certain commander has abandoned his command or 
 given it up to the enemy. 
 
 (b) That the accused was under the command of this commander, 
 (e) Acts or omissions of the accused that compelled the com- 
 mander to abandon his command or give it up to the enemy. 
 
 SEVENTY-SEVENTH ARTICLE. 
 
 ■ 427. Any person subject to military law who makes known the parole or coun- 
 tersign to any person not entitled to receive it according to the rules and dis- 
 cipline of war, or gives a parole or countersign different from that which he 
 received, shall, if the offense be committed in time of war, suffer death or such 
 other punishment as a court-martial may direct. 
 
 Definitions and Principles. 
 
 A countersign is a word given from the principal headquarters 
 of a command to aid guards and sentinels in their scrutiny of persons 
 who apply to pass the lines. 
 
230 MANUAL FOR OOUETS-MAETIAL. 
 
 A parole is a word used as a check on the countersign. It is im- 
 parted only to those who are entitled to inspect guards and to com- 
 manders of guards. 
 
 Analysis and Proof. 
 
 The article applies to any person subject to military law. 
 It defines two offenses : 
 
 I. Making known the parole or countersign. 
 
 II. Giving a parole or countersign different from that received. 
 
 I. MAKING KNOWN THE PAROLE OR COUNTERSIGN. 
 
 The class of persons entitled to receive the countersign will expand 
 and contract under the varying circumstances of war. Who these 
 persons are will be determined largely, in any particular case, by 
 the general or special orders under which the accused was acting. 
 It is no defense under the terms of this law that the accused did not 
 know that the person to whom he communicated the countersign 
 or parole was not entitled to receive it. Before imparting such a 
 word it behooves a person subject to military law to determine at his 
 peril that the person to whom he presumes to make known the word 
 is a person authorized to receive it. 
 
 The intent or motive that actuated the accused is immaterial to the 
 issue of guilt, as would also be the circumstance that the imparting 
 was negligent or inadvertent. It is likewise immaterial whether the 
 accused had himself received the password in the regular course 
 of duty or whether he obtained it in some other way. 
 
 (a) That the accused made known the countersign or parole to a 
 certain person, known or unknown. 
 
 (b) That the person was not entitled to receive it. 
 
 II. GIVING A PAROLE OR COUNTERSIGN DIFFERENT FROM THAT RECEIVED. 
 
 The intent or motive that actuated the accused is immaterial to the 
 issue of guilt. 
 
 (a) That the accused received a certain countersign or parole. 
 (i) That he gave a parole or countersign different from that 
 which he received. 
 
 SEVENTY-EIGHTH ARTICLE. 
 
 428. Any person subject to military law who, in time of war, forces a safe- 
 guard shall suffer death or such other punishment as a court-martial may direct. 
 
PUNITIVE ARTICLES. 231 
 
 Definitions and Principles. 
 
 A safeguard is a detachment, guard, or detail posted by a com- 
 mander for the purpose of protecting some person or persons, place, 
 or property. The term also imports a written order left by a com- 
 mander with an enemy subject or posted upon enemy property for 
 the protection of the individual or property concerned. 
 
 Any trespass on the protection of the safeguard will constitute an 
 offense under the article, provided that the accused was aware of the 
 existence of the safeguard. 
 
 Analysis and Proof. 
 
 The article applies to all persons subject to military law. 
 It defines one offense : 
 
 I. FORCING A SAFEGUARD. 
 
 (a) That a safeguard had been issued or posted for the protection 
 of a certain person or persons, place, or property. 
 
 (5) That, with knowledge of the safeguard, or under circum- 
 stances that charged him with notice of the safeguard, the accused 
 trespassed upon its protection. 
 
 SEVENTY-NINTH ARTICLE. 
 
 429. All public property taken from the enemy is the property of the United 
 States and shall be secured for the service of the United States, and any person 
 subject to military law who neglects to secure such property or is guilty of 
 wrongful appropriation thereof shall be punished as a court-martial may direct. 
 
 Definitions and Principles. 
 
 Immediately upon its capture from the enemy public property 
 becomes the property of the United States. Neither the individual 
 who takes it nor any other person has any private right in such 
 property. On the contrary, every person subject to military law 
 has an immediate duty to take such steps as are within his powers 
 and functions to secure such property to the service of the United 
 States and to protect it from destruction or loss. 
 
 Analysis and Proof. 
 
 The article applies to all persons subject to military law. See 
 A. W. 2. 
 
 It defines two offenses : 
 
 I. Neglecting to secure captured public property. 
 
 II. Wrongful appropriation of captured public property. 
 
232 MANUAL FOB COURTS-MARTIAL. 
 
 I. NEGLECTING to secure captured public property. 
 
 The neglect will consist in a failure to take such steps as a reason- 
 ably prudent man acting in the capacity in which accused was acting 
 would have taken in the same or similar circumstances to secure the 
 property in question to the service of the United States. 
 
 (a) That certain public property was captured from the enemy. 
 
 (&) That the functions of the accused vested him with a certain 
 power and imposed on him a certain duty to secure such property 
 to the service of the United States. 
 
 (c) Acts or omissions of the accused which evidence a failure to 
 take such steps to secure the property to the service of the United 
 States as would have been taken by a reasonably prudent person 
 acting in the capacity in which the accused was acting and in the 
 same or similar circumstances. 
 
 II. WRONGFUL APPROPRIATION OF CAPTURED PUBLIC PROPERTY. 
 
 Any unauthorized and unjustified act in disposition of property 
 which is inconsistent with the true owner's right of complete domin- 
 ion over it is a wrongful appropriation of it. A wrongful appropria- 
 tion is distinguished from a neglect in that it presumes some act 
 while a neglect may consist solely in an omission. 
 
 (a) That certain public property was captured from the enemy. 
 
 (i) Acts of the accused in disposition of the captured public prop- 
 erty, inconsistent with the United States right of complete dominion 
 over that property. 
 
 EIGHTIETH ARTICLE. 
 
 430. Any person subject to military law who buys, sells, trades, or in any way 
 deals in or disposes of captured or abandoned property, whereby he shall 
 receive or expect any profit, benefit, or advantage to himself or to any other per- 
 son directly or indirectly connected with himself, or who fails whenever such 
 property comes into his possession or custody or within his control to give notice 
 thereof to the proper authority and to turn over such property to the proper 
 authority without delay, shall, on conviction thereof, be punished by fine or 
 imprisonment, or by such other punishment as a court-martial, military com- 
 mission, or other military tribunal may adjudge, or by any or all of said 
 penalties. 
 
 Definitions and Principles. 
 
 This article is broader than the preceding one in the following 
 particulars : It protects abandoned as well as captured property and 
 private as well as public property. 
 
PUNITIVE ARTICLES. 233 
 
 Unless the property is private or abandoned property or unless 
 the acts charged fall within the descriptions of this article, the 
 offense should be charged under article 79, supra. 
 
 Analysis and Proof. 
 
 The article applies to all persons subject to military law. See 
 A. W. 2. 
 
 It defines a number of offenses which may be treated as follows : 
 
 I. Any dealing in or disposition of captured or abandoned property 
 whereby the accused receives or expects to receive an advantage. 
 
 II. Failure or delay in reporting the receipt of and in turning 
 over to proper authority captured or abandoned property. 
 
 I. DEALING IN CAPTURED OR ABANDONED PROPERTY. 
 
 This portion of the article addresses itself to several specific acts 
 of wrongful dealings and looks especially to cases where, in- 
 stead of appropriating the property to his own use in kind, the 
 accused in any other way deals with it to advantage. The article 
 prohibits receipt as well as disposition of captured or abandoned 
 property by barter, gift, pledge, lease, or loan. It lies against the 
 destruction or abandonment of such property if any of these acts are 
 done in the receipt or expectation of profit, benefit, or advantage to 
 the actor or to any other person directly or indirectly connected with 
 himself. The expectation of profit need not be founded on contract ; 
 it is enough if the prohibited act be done for the purpose, or in the 
 hope, of benefit or advantage, pecuniary or otherwise. 
 
 (a) That the accused has disposed of, dealt in, received, etc., cer- 
 tain public or private or abandoned property. 
 
 (6) That by so doing the accused received or expected some 
 profit or advantage to himself or to a certain person connected in a 
 certain manner with himself. 
 
 II. FAILURE OR DELAY IN REPORTING THE RECEIPT OF CAPTURED OR ABAN- 
 DONED PROPERTY. 
 
 Proper authority is any authority competent to order the disposi- 
 tion of the property in question, and the required report should be 
 direct or through such channels as the customs and rules of the service 
 prescribe. 
 
 PBOOF. 
 
 (a) That certain captured or abandoned property came into the 
 possession, custody, or control of the accused. 
 
234 MANUAL FOR COURTS-MARTIAL. 
 
 (5) Acts or omissions of the accused which evidence his failure in 
 reporting the receipt of, and in turning over without delay, such 
 property to proper authority. 
 
 EIGHTY-FIRST ARTICLE. 
 
 431. Whosoever relieves the enemy with arms, ammunition, supplies, money, 
 or other thing, or knowingly harbors or protects or holds correspondence with or 
 gives intelligence to the enemy, either directly or indirectly, shall suffer death, 
 or such other punishment as a court-martial or military commission may direct. 
 
 Definitions and Principles. 
 
 " Enemy " imports enemy citizens as well as soldiers and does not 
 restrict itself to the enemy government or its army. All the citi- 
 zens of one belligerent are enemies of the Government and of all the 
 citizens of the other. 
 
 Analysis and Proof. 
 
 This article describes, in nearly every phrase, an overt act of 
 treason. The word whosoever, as it is here used, subjects to the juris- 
 diction of courts-martial and military commissions all persons, either 
 military or civil, who, in the theater of operations and during the 
 continuance of war traffic with the enemy in any of the ways herein 
 denounced. 
 
 The article defines four offenses : 
 
 I. Relieving the enemy. 
 
 II. Harboring or protecting the enemy. 
 
 III. Holding correspondence with the enemy. 
 
 IV. Giving intelligence to the enemy. 
 
 I. RELIEVING the enemy. 
 
 "Relieves," in the sense here used, is substantially equivalent to 
 furnishes or supplies. It is immaterial whether the articles furnished 
 are needed by the enemy or whether the transaction is a donation 
 or sale. Knowledge or intent is not an essential in proof of this 
 offense. 
 
 PEOOF. 
 
 (a) That the accused either directly or indirectly furnished the 
 enemy with a certain article or articles. 
 
 II. harboring or protecting the enemy. 
 
 An enemy is harbored or protected when he is shielded either 
 physically or by use of any artifice, aid, or representation from any 
 injury or misfortune which in the chance of war may befall him. It 
 
PUNITIVE ARTICLES. 235 
 
 must appear that the offense is knowingly committed. But, as in all 
 other cases where knowledge must be proved, circumstances sufficient 
 to put a reasonable man on notice will be sufficient to charge the 
 accused with notice. 
 
 (a) That the accused harbored or protected a certain person. 
 (&) That the person so protected was an enemy, and that the 
 accused had notice or is chargeable with notice of this fact. 
 
 III. HOLDING CORRESPONDENCE WITH THE ENEMT. 
 
 Correspondence does not necessarily import a mutual exchange of 
 communication. The rule requires absolute nonintercourse, and any 
 communication, no matter what may be its tenor or intent, is here 
 denounced. The prohibition lies against any method of communica- 
 tion whatsoever, from the winking of an eye to the sending of script, 
 and the offense is complete the moment the communication emanates 
 from the accused whether it reaches its destination or not. The 
 words " directly or indirectly " are construed as applying to this 
 offense, and they include within the prohibition communications 
 printed in newspapers and intended for the enemy and to com- 
 munications conveyed to the enemy through friendly or neutral hands. 
 It is essential to prove that the offense was knowingly committed. 
 
 Citizens of neutral powers resident in or visiting invaded or occu- 
 pied territory can claim no immunity from the customary laws of war 
 which threaten punishment for communication with the enemy. The 
 offense of communicating with the enemy when committed by a resi- 
 dent of occupied territory constitutes war treason and is properly 
 charged under this article. 
 
 PEOOF. 
 
 (a) That the accused uttered a certain communication. 
 
 (5) That the communication was intended for a certain person, 
 and that the accused had notice or is chargeable with notice that this 
 person was an enemy. 
 
 IV. GIVING INTELLIGENCE TO THE ENEMY. 
 
 This is a particular case of corresponding with the enemy rendered 
 more heinous by the fact that the communication contains intelligence 
 that may be useful to the enemy for any of the multifarious reasons 
 that make information valuable to belligerents. As in the preceding 
 case, knowledge must be proved, and it is immaterial to the issue of 
 guilt whether the intelligence was conveyed by direct or indirect 
 means. The word " intelligence " imports that the information con- 
 veyed is true, at least in part. 
 
236 MANUAL FOK COURTS-MABTIAL. 
 
 (a) That the accused knowingly conveyed to the enemy certain 
 information. 
 
 (6) That the information was true, at least in part. 
 
 EIGHTY-SECOND ARTICLE. 
 
 432. Any person who in time of war shall be found lurking or acting as a spy 
 in or about any of the fortifications, posts, quarters, or encampments of any 
 of the armies of the United States, or elsewhere, shall be tried by a general 
 court-martial or by a military commission, and shall, on conviction thereof, 
 suffer death. 
 
 Definitions and Principles. 
 See below. 
 
 Analysis and Proof. 
 
 The words " any person " bring within the jurisdiction of courts- 
 martial and military commissions all persons of whatever nationality 
 or civil status who may be accused of the offense denounced by the 
 article. 
 
 The article defines one crime — -being a spy. 
 
 I. BEING A SPY. 
 
 The principal characteristic of this offense is a clandestine dissimu- 
 lation of the true object sought, which object is an endeavor to obtain 
 information with the intention of communicating it to the hostile 
 party. 
 
 Thus, soldiers not wearing disguise, dispatch riders, whether sol- 
 diers or civilians, and persons in aircraft who carry out their mis- 
 sions openly and who have penetrated hostile lines are not to be 
 considered spies, for the reason that, while they may have resorted 
 to concealment, they have practiced no dissimulation. 
 
 It is necessary to prove an intent to communicate information to 
 the hostile party. This intent will very readily be presumed on 
 proof of a deceptive insinuation of the accused among our forces, but 
 this presumption may be rebutted by very clear evidence that the 
 person had come within the lines for a comparatively innocent pur- 
 pose, as to visit his family or that he has assumed a disguise to 
 enable him to reach his own lines. 
 
 It is not essential that the accused obtain the information sought 
 or that he communicate it. The offense is complete with the lurking 
 or dissimulation with intent to accomplish these objects. 
 
 An act of espionage completed by the escape of the accused to his 
 own lines can not be the subject of trial if the quondam spy is later 
 captured. 
 
 A person living in occupied territory who, without dissimulation, 
 merely reports what he sees or what he hears through agents to the 
 
PUNITIVE ARTICLES. 237 
 
 enemy mav be charged under the preceding article with communi- 
 cating or giving intelligence to the enemy, but he may not be charged 
 under this article with being a spy. 
 
 (a) That the accused was found at a certain place within our lines, 
 acting clandestinely, or under false pretenses. 
 
 (&) That he was obtaining, or endeavoring to obtain, information 
 with intent to communicate the same to the enemy. 
 
 Section VI. 
 MISCELLANEOUS CRIMES AND OFFENSES. 
 
 EIGHTY-THIRD ARTICLE. 
 
 433. Any person subject to military law who willfully, or through neglect, 
 suffers to be lost, spoiled, damaged, or wrongfully disposed of, any military 
 property belonging to the United States shall make good the loss or damage 
 and suffer such punishment as a court-martial may direct. 
 
 Definitions and Principles. 
 
 The loss, etc., may be said to be willfully suffered when the accused 
 knowing the loss, etc., to be imminent or actually going on, takes no 
 steps to prevent it, as where a sentinel seeing a small and readily 
 extinguishable fire in a stack of hay on his post allows it to burn up. 
 A suffering through neglect implies an omission to take such meas- 
 ures as were appropriate under the circumstances to prevent a 
 probable loss, damage, etc. 
 
 The willful or neglectful sufferance specified by the article may 
 consist in a deliberate violation or positive disregard of some specific 
 injunction of law, regulations, or orders; or it may be evidenced by 
 such circumstances as a reckless or unwarranted personal use of the 
 property; causing or allowing it to remain exposed to the weather, 
 insecurely housed or not guarded; permitting it to be consumed, 
 wasted, or injured by other persons; loaning it to an irresponsible 
 person by whom it is damaged, etc. (Winthrop, p. 862.) 
 
 Analysis and Proof. 
 
 The article applies to any one subject to military law. See 
 article 2. 
 
 The article embraces eight offenses, indicated by the following 
 
 diagram : 
 
 Any mili- 
 tary prop 
 
 • Suffers to be 
 
 Any person ' 
 subject to 
 military 
 law who 
 
 Willfully 
 or 
 Through neglect 
 
 Lost, 
 Spoiled, 
 
 or 
 • Wrongfully disposed of 
 
 erty be- 
 longing to 
 the United 
 States. 
 
238 
 
 MANUAL FOB COURTS-MARTIAL. 
 
 These offenses may be briefly treated under the heading " Suffering 
 military property to be lost, etc." 
 
 (a) That certain military property was lost, spoiled, damaged, 
 or wrongfully disposed of in the manner alleged. 
 
 (i) 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, accouterments, 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. 
 
 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, 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 : 
 
 '.ny soldier who 
 
 Sells 
 
 or 
 Wrongfully disposes of 
 
 or 
 Willfully [Injures 
 
 or or 
 
 Through neglect [Loses 
 
 Any. 
 
 Horse, 
 
 
 Arms, 
 
 
 Ammunition, 
 
 Issued for 
 
 Accouterments, 
 
 use in the 
 
 Equipment, 
 
 military 
 
 Clothing, 
 
 service. 
 
 or 
 other property 
 
 
PUNITIVE AETICLES. 239 
 
 These offenses may be treated under the following .heads : 
 
 I. Selling or wrongfully disposing of military property. 
 
 II. Willfully or through neglect injuring or losing military 
 property. 
 
 I. SELLING OR WRONGFULLY DISPOSING OF MILITARY 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 manner alleged. 
 
 (&) That such disposition was wrongful. 
 
 (e) That the property was issued for use in the military service. 
 
 (d) The value of the property as alleged. 
 
 H. WILLFULLY OR THROUGH NEGLECT INJURING OR LOSING MILITARY 
 
 PROPERTY. 
 
 A willfiiZ injury or loss is one that is intentionally occasioned. A 
 loss or injury is occasioned through neglect when it is the result 
 of a want of such attention to the nature or probable consequences of 
 an act or omission as was appropriate under the circumstances. 
 
 Accouterments applies in the military sense to those parts of the 
 soldier's equipment which are issued by the Ordnance Depart- 
 ment in connection with his arms and ammunition, such for example 
 as belts and cartridge pouches. (Digest, p. 1084.) 
 
 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. 
 
 (a) That certain property was injured in a certain way or lost, 
 as alleged. 
 
 (b) That such property was issued for use in the military service. 
 
 (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 FOB COURTS-MABTTAL. 
 
 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 ttie 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. 
 (5) That he was found drunk while on sucb duty. 
 70844°— 16 17 
 
242 MANUAL FOR COURTS-MARTIAL. 
 
 EIGHTY-SIXTH ARTICLE. 
 
 436. Any sentinel who is found dwink or sleeping upon his post, or who leaves 
 it before be is regularly relieved, stall, 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 watc7imcm. 
 
 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, hut 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. 
 
 L BEING FOUND DRUNK ON POST, 
 
 As to drunkenness, see matter under eighty-fifth article, page 240. 
 
 (a) That the aceused soldier was posted as a sentinel on a certain 
 post, as alleged. 
 
 (Z>) That he was found drunk while on suoh 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. 
 
 (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 BEFORE BEING BELIEVED. 
 
 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 
 
 (a) That the accused soldier was posted as a sentinel on a certain 
 post, as alleged. 
 
 (&) 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 
 VICTUALS, ETC. 
 
 A commanding officer who should prohibit the entry into his camp 
 of peddlers of vegetables for the troops, permitting it only if the 
 peddlers pay him for the privilege, would be guilty of this offense 
 whether any money was actually paid or not. 
 
 (a) That the accused officer was in command of a certain place 
 where troops of the United States were serving, as alleged. 
 
 (b) That he laid a certain duty or imposition upon the bringing 
 into such command of victuals or other necessaries of life for the 
 use of such troops, as alleged. 
 
 (c) That such duty or imposition was laid for his own private 
 advantage. 
 
 II. BEING INTERESTED IN THE SALE OP VICTUALS, ETC. 
 
 The interest need not be a direct interest, such as that attaching to 
 a partnership, or part ownership, of the articles introduced for sale, 
 but may be one of an indirect or 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. 
 
 (a) That the accused officer was in command of a certain place 
 where troops of the United States were serving, as alleged. 
 
 (5) 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, OK WRONGFULLY INTERFERING 
 WITH PERSONS BRINGING NECESSARIES. 
 
 PEOOF. 
 
 (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. 
 
 PBOOF. 
 
 (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. 
 
 (&) That such acts were not ordered by his commanding officer. : 
 
246 MANUAL FOE COURTS-MARTIAL. 
 
 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. 
 
 (b) That such destruction was willful and was not ordered by his 
 commanding officer. 
 
 III. COMMITTING DEPREDATION OR RIOT. 
 
 The terms " any kind of depredation or riot," include plundering, 
 pillaging, robbing, and any other willful damage to property not 
 included in the preceding specific terms of the article. Injuries to 
 persons are not made punishable by this article. 
 
 (a) That the accused being with a certain command in quarters, 
 camp, garrison, or on the march, committed certain acts of depreda- 
 tion on certain property, or certain acts of rioting resulting in injury 
 to certain property, as alleged. 
 
 IV. REFUSING OR OMITTING TO SEE REPARATION MADE. 
 
 Refusing to entertain a proper complaint at all ; refusing or omit- 
 ting to convene a board for the assessment of damage ; or to act on 
 such proceedings, or to direct the proper stoppages are instances of 
 this offense. 
 
 (a) That the accused was the commanding officer of a certain com- 
 mand in quarters, garrison, camp, or on the march, as alleged. 
 
 (b) 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 a provoking 
 speeches or gestures to another ; and any person subject to military law who 
 offends against the provisions of this article shall be punished as a court- 
 martial may direct. 
 
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. 
 
 (a) That the accused used certain speeches or gestures to a certain 
 person, as alleged. 
 
 (b) That the speeches or gestures were reproachful or provoking. 
 
 (c) That the person to whom such speeches or gestures were ad- 
 dressed is in one of the classes of persons subject to military law. N 
 
 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. 
 
 (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. 
 
 n. BEING CONCERNED IN OR CONNIVING AT FIGHTING A DUEL. 
 
 Being concerned in or conniving at fighting a duel would include 
 the being present thereat in some capacity other than a principal, as 
 in the case of seconds and doctors. 
 
 (a) That the accused was concerned in or connived at fighting a 
 certain duel in the manner alleged. 
 
 III. 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. 
 
 (a) That the accused knew that a certain challenge had been sent, 
 or was about to be sent, as alleged. 
 
 (b) 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. 
 
 y 
 
 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. Rape. 
 
 I. MURDER. 
 
 Murder is the unlawful killing of a human being with malice 
 aforethought. (Federal Penal Code, 1910, sec. -273.) 
 
 " Unlawfully " as used in the definition of murder means without 
 legal justification or excuse. 
 
 A homicide done in the proper performance of a legal duty is 
 justifiable. Thus, executing a person pursuant to a sentence of 
 death; killing in suppressing a mutiny or in preventing the escape 
 of a prisoner where no other available means are adequate; killing 
 an enemy in battle; and killing to prevent the commission of a 
 felony attempted by force or surprise, such as murder, burglary, or 
 arson, are cases of justifiable homicide. 
 
 The right and duty of a sentinel over a prisoner in his charge in 
 case of attempted escape is discussed in the Manual of Interior Guard 
 Duty, 1914. 
 
 This right and duty extends to other members of the guard whose 
 duties include the safe-keeping of such prisoner. (Digest, 1912, 
 p. 583.) 
 
 The same principles apply to the arrest of a soldier by officers or 
 soldiers authorized to make the particular arrest. 
 
 A party of soldiers left their camp at night in time of war, without 
 leave contrary to positive orders and proceeded to a neighboring 
 town, where they created a disturbance. Their commanding officer 
 followed them, found them in a saloon, and was about to arrest 
 them, when they broke from him, and knowing who he was disre- 
 garded his order to halt and ran away from him. He repeated his 
 order, and not being obeyed and having no other means of detaining 
 them, fired upon them while fleeing with a pistol, and shot and killed 
 one of them. Held, that he did not use undue force in endeavoring 
 to maintain discipline and to arrest the offenders whom he was en- 
 deavoring to return to their stations, and that he was not guilty of an 
 offense requiring punishment, and that his conduct under the circum- 
 stances in which he was placed was justified. (Digest, p. 480.) 
 
250 MANUAL FOR COTJRTS-MAETTAL. 
 
 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 FOB COUBTS-MAETIAL. 
 
 There is no consent where the woman is so idiotic as to be in-' 
 capable of consenting, and a man having connection with her not 
 believing that he has her consent is guilty of rape. So also where 
 the woman is insensible, unconscious, or asleep, or where her apparent 
 consent was extorted by violence to her person or fear of sudden 
 violence. 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 ; 
 
 (b) That the act was done by force and without her consent; or 
 that the female was under the age of 10 years. 
 
 NINETY-THIRD ARTICLE. 
 
 443. Any person subject to military law who commits manslaughter, mayhem, 
 arson, burglary, robbery, larceny, embezzlement, perjury, assault with intent to 
 commit any felony, or assault with intent to do bodily harm, shall be punished 
 as a court-rmartial 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 involuntary 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 merely 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 MANUAL 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. 
 
 PEOOF. 
 
 (a) See item (a) under "Proof of murder" under ninety-second 
 article. 
 
 (Z>) The facts and circumstances of the case, as alleged, indicat- 
 ing that the homicide amounted in law to manslaughter. 
 
 II. MAYHEM. 
 
 Mayhem at common law is " a hurt of any part of a man's body 
 whereby he is rendered less 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. 
 
 (b) The facts and circumstances of the 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. 
 
 («.) 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 must be a dwelling house 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 FOE COUETS-MARTIAL. 
 
 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 constrictive 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 face, and both must be done 
 with the intent to commit a felony in the house. It is immaterial 
 whether the felony be committed or even attempted, and where a 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. 
 
 (b) That such breaking and entering was done in the nighttime. 
 
 (c) The facts and circumstances of the case (for instance, the 
 actual commission of the felony) which indicate that such breaking 
 and entering were done with the intent to commit the alleged felony 
 therein. 
 
PUNITIVE ARTICLES. 257 
 
 V. LARCENY. 
 
 Larceny at common 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 bailment, but do not apply where 
 the owner intends to part with the ownership of the property. Where 
 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 
 
 70844°— 16 18 
 
258 MANUAL FOE COTJRTS-MAETIAL. 
 
 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 sen-ant 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 oftep 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 or putting the money into 
 his employer's safe or other proper place, puts it into his own pocket 
 and appropriates it, or hides it on the premieee and afterwards car- 
 ries it off, he does not commit larceny, for, as. {he money has not 
 reached its destination, but is merely in trans't, tfcs master has not 
 obtained possession, either actual or constructive. Jf. 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 COURTS-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 whether 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 assumes 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 larceny is not committed where the taking was without any 
 intent at all as regards the property, as in the case of property taken 
 by mistake or accidentally; or where the intent was to take one's 
 own property, as in the case of property taken under a bona 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, though its 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. 
 
 PROOF. 
 
 (a) The taking by the accused of the property as alleged. 
 (&) 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 temporary use. 
 
 It is not necessary that the person from whom the property is taken 
 be the actual owner — it is enough if he have a possession or a 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, fwent into such room and stole the valuables their offense was 
 held to be robbery. 
 
 The taking must be against the owner's will by means of violence 
 or intimidation. The violence or intimidation must precede or ac- 
 company the taking. Thus where property is taken by stealth from 
 the person of its owner it is not robbery in case the thief overcomes a 
 forcible effort to retake it; or the owner is deterred by the threats 
 of the thief from making an attempt to retake it. 
 
 The violence must be actual violence to the person, but the amount 
 of violence used is immaterial. It is enough where it overcomes the 
 actual resistance of the person robbed, or puts him in such a posi- 
 tion that he makes no resistance, or suffices to overcome the resistance 
 offered by a chain or other fastening by which the article is at- 
 tached to the person. Where an article is merely snatched out of 
 another's hand or a pocket is picked by stealth and no other force is 
 used and the owner is not put in fear, the offense is not robbery. But 
 if in snatching the article resistance is overcome, there is sufficient 
 violence, as where a woman's earring is torn from her ear or a hair 
 ornament entangled in her hair is snatched away. So, also, when 
 a person's attention is diverted by being jostled by a confederate of 
 a pickpocket, who is thus enabled to steal the person's watch, it is a 
 robbery. 
 
 Other instances of robbery by violence are where a man is 
 knocked insensible and his pockets rifled, and where an officer steals 
 property from the person of a prisoner in his charge after hand- 
 cuffing him on the pretext of preventing his escape. 
 
 It is equally robbery whether the robber prevents resistance by 
 rendering his victim physically incapable of making any, or by put- 
 ting him, by threat or menaces, in such fear that he is warranted 
 in making none. The fear must be a reasonably well-founded appre- 
 hension of present or future danger, and the goods must be taken 
 while such apprehension exists. The danger apprehended may be, 
 for instance, his own death or some bodily injury to him, or the de- 
 struction of his habitation, or a prosecution for sodomy. 
 
 In the last case it is immaterial whether the person threatened 
 with the prosecution is innocent or guilty of the offense. A danger 
 of being prosecuted for any other offense is held not to be sufficient. 
 (Clark and Marshall, p. 865.) 
 
 (a) The larceny of the property. See proof under larceny above. 
 (i) That such larceny was from the person or in the presence of 
 the person alleged to have been robbed. 
 
 (c) That the taking was by violence or putting in fear, as alleged. 
 
264 MANUAL FOR COURTS-MARTIAL. 
 
 VII. EMBEZZLEMENT. 
 
 Embezzlement is a fraudulent appropriation of another's property 
 by a person to whom it has been intrusted or into whose hands it 
 has lawfully come. It differs from larceny in that the original 
 taking of the property was lawful or with the consent of the owner, 
 while in larceny the felonious intent must have existed at the time of 
 the taking. (Cyc, vol. 15, p. 488.) 
 
 Embezzlement is not a common law but a statutory offense. 
 
 The purpose of embezzlement statutes is to meet the case of a serv- 
 ant, clerk, bailee, or other person to whom the possession of prop- 
 erty is intrusted by or for the owner, and who fraudulently misap- 
 propriates it to his own use or otherwise, the circumstances being 
 such that the act is not larceny. 
 
 The gist of the offense is a breach of trust, and can not be com- 
 mitted unless some fiduciary relationship exists between the owner 
 and the person in possession of the property and unless such pos- 
 session was taken by virtue of such relationship. 
 
 (a) That the accused was the clerk or servant of a certain other 
 person or stood in some other fiduciary relationship to that per- 
 son, as alleged. 
 
 (b) That in such fiduciary capacity the accused received into his 
 possession certain money or property of such person, as alleged. 
 
 (c) That he converted or appropriated to his own use such money 
 or property during the existence of such fiduciary relationship. 
 
 (d) The facts and circumstances indicating that the accused had 
 in so doing the fraudulent intent to deprive the owner permanently 
 of his property in the goods or money, or of their value or a part 
 thereof. 
 
 VIII. PERJURY. 
 
 Perjury, at common law, is the willful and corrupt giving, upon 
 a lawful oath, or in any form allowed by law to be substituted for 
 an oath, in a judicial proceeding or course of justice, of false tes- 
 timony material to the issue or matter of inquiry. (Clark, p. 385.) 
 
 The false testimony must be willfully and corruptly given ; that is, 
 with a deliberate intent to testify falsely. 
 
 It is not perjury to testify by mistake to what is believed to be true, 
 however unfounded the belief may be; hence, a witness may contra- 
 dict under oath testimony formerly given by him without commit- 
 ting perjury, since he may on each occasion have believed his testi- 
 mony to be true. On the other hand, a witness may commit perjury 
 
PUNITIVE ARTICLES. 265 
 
 by testifying that he knows a thing to be true when in fact he either 
 knows nothing about it at all or is not sure about it, and this is so 
 whether the thing be true or false in fact. So, also, a witness may 
 commit perjury in testifying falsely as to his belief, remembrance, 
 or, impression, or as to his judgment or opinion on matters of fact. 
 Thus where a witness swears that he does not remember certain facts 
 when in fact he does he commits perjury, if the other elements of 
 the offense are present. So, also, where a witness testified that in 
 his opinion a certain person was drunk when in fact he entertains 
 the contrary opinion. 
 
 The oath must be one required or authorized by law and must be 
 duly administered by one authorized to administer it. If no particu- 
 lar form of oath is prescribed by statute, the form of oath is imma- 
 terial, but " there must be in some form, in the presence of an officer 
 authorized to administer it, an unequivocal and present act by which 
 the affiant takes upon himself the obligation of an oath." (Clark and 
 Marshal, p. 863.) 
 
 Thus, where a person merely delivers an affidavit signed by him 
 to an officer authorized to administer the oath thereto, and without 
 anything more .being said or done the officer signs the jurat, no oath 
 has been administered. 
 
 Where a form of oath has been prescribed a literal following of 
 the statute is not essential. It is sufficient if the oath administered 
 conforms in substance to the statutory form. 
 
 An oath includes an affirmation where the latter is authorized in 
 lieu of an oath. 
 
 It is no defense that the witness voluntarily appeared, or that he 
 was incompetent as a witness, or that his testimony was given in 
 response to questions that, he could have declined to answer, even if 
 he was forced to answer it over his claim of privilege. 
 
 It is a defense, however, if the tribunal or magistrate had no juris- 
 diction of the cause in which the false testimony was given. 
 
 The false testimony must be material to. the issue or matter of in- 
 quiry, but the issue or matter of inquiry may be a collateral one. 
 
 Thus perjury may be committed by giving material false testimony 
 with respect to the credibility of a material witness, or in an affidavit 
 in support of a request for a continuance, as well as by giving testi- 
 mony with respect to a fact from which a legitimate inference may 
 be drawn as to the existence or nonexistence of a fact in issue. It is 
 no defense that such testimony would have been excluded if objected 
 to as incompetent, .or that it was not believed, or that it did not affect 
 the result in any way, or that subsequent proceedings rendered it 
 immaterial. 
 
266 MANUAL FOB COUBTS-M A RTIAL. 
 
 (a) That a certain judicial proceeding or course of justice was 
 pending. 
 
 (&) That the accused was sworn in such proceeding. 
 
 (c) That such oath was administered to the accused in a matter 
 where an oath was required or authorized by law, as alleged. 
 
 (d) That such oath was administered by a person having author- 
 ity to do so. 
 
 (e) That upon such oath he gave the testimony alleged. 
 
 (/) That such testimony was false, and material to the issue or 
 matter of inquiry. 
 
 (g) The facts and circumstances indicating that such false tes- 
 timony was willfully and corruptly given. 
 
 IX. ASSAULT WITH INTENT TO COMMIT ANT FELONY. 
 
 An assault with intent to commit any felony is an assault made 
 with a specific intent to murder, rape, rob, or to commit man- 
 slaughter, sodomy, or other common-law felony. 
 
 An assault is an attempt or offer with unlawful force or violence to 
 do a corporal hurt to another. (Clark and Marshall, p. 271.) 
 . Raising a stick over another's head as if to strike him, presenting 
 a firearm ready for use within range of another, striking at another 
 with a cane or fist, assuming a threatening attitude and hurrying 
 toward another are examples of assaults. 
 
 Some overt act is necessary in any assault. Mere preparation, such 
 as unfastening the catch on a pistol holster in order that the pistol 
 may be drawn, or picking up a stone at a considerable distance from 
 another without making any attempt or offer to throw it, is not an 
 assault. 
 
 The force or violence must be physical; mere words, however 
 threatening, or insulting gestures are not by themselves sufficient to 
 constitute an assault. 
 
 Furthermore, in an assault there must be an intent, actual or ap- 
 parent, to inflict corporal hurt on another. 
 
 Where the circumstances known to the person menaced clearly 
 negative such intent there is no assault. Thus, where a person accom- 
 panies an apparent attempt to strike another by an unequivocal an- 
 nouncement in some form of his intention not to strike, there is no 
 assault. This principle was applied in a case where the defendant 
 raised his whip and shook it at the presecutor within striking dis- 
 tance saying, " If you weren't an old man, I would knock you down." 
 
 Viewed solely as an attempt to commit a battery there must be an 
 actual or constructive intent to do a corporal hurt to another, and an 
 
PUNITIVE ARTICLES. 267 
 
 act of unlawful violence or force begun to be executed with a view to 
 inflicting such hurt. How such purpose is defeated is immaterial. 
 
 The following have been held to be assaults : Eiding after a person 
 so as to compel him to seek safety in an inclosure to avoid a beating, 
 though the assailant was never near enough to hit him; rushing 
 upon another in a threatening attitude although before quite close 
 enough to strike, the person threatened strikes in self-defense or, 
 the attack is frustrated by a third person. 
 
 It is also an assault where the person in order to avert the taking 
 effect of the unlawful violence yields to a demand of his assailant. 
 Thus, where A, being within striking distance of B, raises a weapon 
 for the purpose of unlawfully striking him, stating that he will 
 strike unless B does a certain thing, and B does that thing, thereby 
 averting the blow, A commits an assault. 
 
 It is not a defense to a charge of assault that for some reason 
 unknown to the assailant his attempt was bound to fail. Thus, 
 where a soldier loads his rifle with what he believes to be a good 
 cartridge and, pointing it at a person, pulls the trigger, he is guilty 
 of assault although the cartridge was so defective that it could not 
 be used. The same principle was applied to a case where a person 
 in a house shoots through the roof at a place where he supposed a 
 policeman was concealed, though the policeman was at another place 
 on the roof . 
 
 The intent need not be to injure a particular person, and mere 
 recklessness may supply the place of intent. Thus, where one strikes 
 at A believing him to be B, he is guilty of assaulting A ; and where 
 one fires a loaded and capped pistol at another recklessly, and not 
 knowing or seeking to know whether it is loaded or not, he commits 
 an assault. 
 
 To constitute an assault, however, it is unnecessary that there be 
 an actual or constructive intent to hurt anyone or a believed ability 
 to inflict such hurt. 
 
 If there be to the person set upon an apparent present intent to 
 injure, coupled with an apparent present ability to do so, it is suffi- 
 cient. 
 
 The better opinion, however, is to the effect that if a person pre- 
 sents a gun at another, or threatens him with a stick or other 
 weapon, and thereby reasonably puts him in fear and causes him 
 to act on the defensive, or to retreat, there is an assault, whether 
 there' is any actual intention to injure or not. In a comparatively 
 late Massachusetts case it was held that a man who pointed an un- 
 loaded gun at another was guilty of an assault, although he may 
 have known that it was not loaded and may have had no intention 
 to injure. " It is not the secret intent of the assaulting party," said 
 the court, "nor the undisclosed fact of his ability or inability to 
 
268 MANUAL FOR COURTS-MARTIAL. 
 
 commit a battery, that is material, but what his conduct and the 
 attending circumstances denote at the time to the party assaulted. 
 If to him they indicate an attack, he is justified in resorting to defen- 
 sive action. The same rule applies to the proof necessary to sustain 
 a criminal complaint for an assault. It is the outward demonstration 
 that constitutes the mischief which is punished as a breach of the 
 peace." (Clark and Marshall, pp. 277, 278.) 
 
 i If there be such a demonstration of violence, coupled with an ap- 
 parent ability to inflict the injury, so as to cause the person at whom 
 it is direoted reasonably to fear the injury unless he retreat to secure 
 his safety, and under such circumstances he is compelled to retreat 
 to avoid an impending danger, the assault is complete, though the 
 assailant may never have been within the actual striking distance of 
 the person assailed. (Clark and Marshall, p. 281, note.) 
 if There must, however, be an apparent present ability. To aim a 
 pistol at a man at such a distance that it clearly could not injure 
 would not be an assault. 
 
 k A battery is an assault in which force is applied, by material 
 agencies, to the person of another, either mediately or immediately. 
 Thus, it is a battery to spit on another; to push a third person 
 against him; to set a dog at him which bites him; to cut his dress 
 while he is wearing it, though without touching or intending to 
 touch his person; to shoot him; and to cause him to take poison. 
 So it is a battery for a man to fondle against her will a woman 
 not his wife. The force may be applied through conductors more 
 or less close. Thus, to strike the dress of the person assailed, or 
 the horse on which he is riding, or the house in which he resides, 
 may be as much a battery as to strike his face; and sending an 
 explosive machine by express from New York to San Francisco 
 may be as much a battery as taking it to San Francisco in person. 
 It is not, however, a battery to lay hands on another to attract his 
 attention, or in a party falling to seize another for support. Send- 
 ing a missile into a crowd also is a battery on anyone whom the 
 missile hits; and so is the use, on the part of one who is excused 
 in using force, of more force than is required. (Wharton, vol. 1, 
 pp. 566, 567.) 
 
 1. Assault With Intent to Murdeb. 
 
 This is an assault aggravated by the concurrence of a specific intent 
 to murder ; in other words, it is an attempt to murder. 
 
 As in other attempts there must be an overt act, beyond mere prep- 
 aration or threats, or an attempt to make an attempt. 
 
 Thus, it was held not an assault with intent to murder where the 
 defendant drew a pistol from his hip pocket, but because of its be- 
 coming caught in the lining of his coat, did not make any actual 
 
PUNITIVE ARTICLES. 269 
 
 attempt to inflict an injury with the pistol on the person alleged to 
 have been assaulted. 
 
 To constitute an assault with intent to murder by firearms it is 
 not necessary that the weapon be discharged ; and in no case is the 
 actual infliction of injury necessary. Thus, where a man with intent 
 to murder another deliberately assaults him by shooting at him the 
 fact that he misses does not alter the character of the offense. 
 
 Where the intent to murder exists, the fact that for some reason 
 unknown the actual consummation of the murder is impossible by 
 the means employed does not prevent the person using them from 
 being guilty of an assault with intent to commit murder where the 
 means are apparently adapted to the end in view. Thus, where a 
 soldier intending to murder another loads his rifle with what he be- 
 lieves to be a good cartridge and aims and discharges his rifle at the 
 other, it is no defense that he, by accident, got hold of a cartridge 
 so defectively loaded that the bullet did not leave the gun. 
 
 In order to constitute this offense the specific intent to murder 
 must exist, and the facts must be such that had death been caused 
 by the act the offense would have been murder, but the converse of 
 this latter proposition is not always true, as a man may be guilty of 
 murder without intending to kill. Thus, where a workman recklessly 
 throws a heavy object from the roof of a building into a street where 
 he knqws people are likely to be passing and thereby kills a person, 
 he may be guilty of murder; but where the person is merely injured, 
 the offense of assault with intent to commit murder is not committed. 
 
 To constitute this offense there must be a specific intent to murder 
 the person assaulted and this intent must exist at the time of the 
 assault. 
 
 A general felonious intent of a specific design to commit another 
 felony is not sufficient, and where a person is too drunk to entertain 
 the specific intent the offense is not murder. But where the accused 
 intending to murder A shoots at and wounds B, mistaking him for 
 A, he is guilty of assaulting B with intent to murder him; so also 
 where a man fires into a group with intent to murder some one he 
 is guilty of an assault with intent to murder each member of the 
 group. 
 
 2. Assault with Intent to Commit Manslaughter. 
 
 This offense differs from assault with intent to murder in the 
 lack of the elements of malice necessary to constitute the latter 
 crime. 
 
 It is an attempt to take human life in a sudden heat of passion. 
 
 The specific intent to kill is necessary and the act must be done 
 under such circumstances that had death ensued the offense would 
 have been manslaughter. 
 
270 MANUAL FOR COURTS-MARTIAL. 
 
 What has been said under the head of assault with intent to commit 
 murder applies to the offense of assault with intent to commit man- 
 slaughter. 
 
 3. Assault with Intent to Commit Rape. 
 
 This is an attempt to commit rape in which the overt act amounts 
 to an assault upon the woman intended to be ravished. Indecent 
 advances, importunities however earnest; mere threats; and actual 
 attempts to rape wherein the overt act is not an assault do not amount 
 to this offense. Thus, where a man, intending to rape a woman, 
 stealthily concealed himself in her room to await a favorable oppor- 
 tunity to execute his design but was discovered and fled, it was 
 held that he was not guilty of an assault with' intent to commit rape. 
 
 No actual touching is necessary. Thus where a man entered a 
 woman's room and got in the bed where she was and within reach of 
 her person for the purpose of ravishing her he commits the offense, 
 although he did not touch the woman. 
 
 This offense may be committed on a woman who is insane or an 
 imbecile, or while she is drugged or intoxicated, or asleep, provided 
 the offense would be rape if the purpose was carried out. But where 
 an attempt to have connection with a woman capable of consenting 
 and whose consent thereto has been obtained by fraud there can be 
 no assault with intent to commit rape. 
 
 Thus an attempt to have connection with a woman who has con- 
 sented thereto in the belief that one personating her husband is her 
 husband can not be an assault with intent to commit rape. 
 
 The intent to have carnal knowledge of the woman assaulted by 
 force and without her consent must exist and concur with the assault. 
 In other words, the man must intend to overcome any resistance by 
 force, actual or constructive, and penetrate the woman's person. 
 Any less intent will not suffice. Thus where a man assaults a woman, 
 his purpose being to seduce her, the offense is not committed. 
 
 Once an assault with intent to commit rape is made it is no defense 
 that the man voluntarily desisted or that the woman yields her con- 
 sent to the connection, so that no rape is committed. 
 
 4. Assault With Intent to Rob. 
 
 This is an attempt to commit robbery wherein the overt act is an 
 assault and the concurrent intent is forcibly to take and carry away 
 property of the person assaulted from his person or in his presence 
 by violence or putting him in fear. 
 
 The accused can not set up as a defense that he intended to take 
 only money and that the person >he attempted to rob had none. 
 
PUNITIVE ARTICLES. 271 
 
 5. Assault With Intent to Commit Sodomy. 
 
 Sodomy consists in sexual connection with any brute animal, or 
 in sexual connection, per anum, by a man with any man or woman. 
 (Wharton, vol. 2, p. 538.) 
 
 Penetration of the mouth of the person does not constitute this 
 offense. 
 
 Both parties are liable as principals if each is adult and consents ; 
 but if either be a boy of tender age the adult alone is liable, arid 
 although the boy consent the act is still by force. 
 
 Penetration alone is sufficient. 
 
 An assault with intent to commit this offense consists of an assault 
 on a human being with intent to penetrate his or her person per anum. 
 
 That which has been before stated, with regard to the evidence 
 and manner of proof in cases of rape, ought especially to be observed 
 upon a trial for this heinous offense. When strictly and impartially 
 proved the offense well merits strict and impartial punishment; 
 but it is from its nature so easily charged and the negative so 
 difficult to be proved that the accusation ought clearly to be made 
 out. The evidence- should be plain and satisfactory in proportion 
 as the crime is detestable. — 4 Bla. Com., 215. (Archbold's Criminal 
 Practice and Pleading, 7th ed., vol. 2, pp. 185, 186, note.) 
 
 (1) Assault with intent to murder: 
 
 (a) That the accused assaulted a certain person, as alleged. 
 
 (&) The facts and circumstances of the case indicating the exist- 
 ence at the time of the assault of the specific intent of the accused 
 to kill such person, and that the killing would have been murder 
 had death resulted. 
 
 [Note. — Both the specific Intent and the malice may be inferred from the de- 
 liberate use of a deadly weapon in a way calculated to cause death, or from 
 other deliberate acts of violence likely to result in death or great bodily harm.] 
 
 (2) Assault with intent to commit manslaughter: 
 
 (a) That the accused assaulted a certain person, as alleged. 
 
 (5) The facts and circumstances of the case indicating the exist- 
 ence at the time of the assault of the specific intent of the accused 
 to kill such person and that the killing would have been voluntary 
 manslaughter had death resulted. 
 
 (3) Assault with intent to commit rape: 
 
 (a) That the accused assaulted a certain female, as specified. 
 
 (h) The facts and circumstances of the case indicating the exist- 
 ence at the time of the assault of the intent of the accused to pene- 
 trate the person of such female at all events by overcoming any 
 resistance on her part by actual or constructive force; and the facts 
 
272 MANUAL FOR COURTS-MARTIAL. 
 
 and circumstances indicating that the offense of rape would have 
 been committed had the accused succeeded in carrying! out his 
 purpose. 
 
 (4) Assault with intent to rob : . 
 
 (a) That the accused assaulted a certain person, as alleged. 
 
 (b) The facts and circumstances of the case indicating the exist- 
 ence at the time of the assault of the intent on the part of the accused 
 forcibly to steal property of such person from his person or. in his 
 presence by violence or putting him in fear. 
 
 (5) Assault with intent to commit sodomy: 
 
 (a) That the accused assaulted a certain person, as alleged. 
 
 (5) The facts and circumstances of the case indicating the con- 
 current intent. to commit the offense on such person. 
 
 X. ASSAULT WITH INTENT TO DO BODILY HARM. 
 
 This is an assault aggravated by the specific present intent to do 
 bodily harm to the person assaulted by means of the force employed. 
 
 It is not necessary that any battery actually ensue, or, if bodily 
 harm is actually inflicted, that it be of the kind intended. Where 
 the accused acts in reckless disregard for the safety of others it is 
 not a defense that he did not have in mind the particular person 
 injured. 
 
 PEOOF. 
 
 (a) That the accused assaulted a certain person, as alleged. 
 
 (6) The facts and circumstances of the case indicating the con- 
 current intent thereby to do bodily harm to such person. 
 
 NINETY-FOURTH ARTICLE. 
 
 444. Any person subject to military law who makes or causes to be made any 
 claim against the United States, or any officer thereof, knowing such claim to be 
 false or fraudulent; or 
 
 [2] Who presents or causes to be presented to any person in the civil or 
 military service thereof, for approval or payment, any claim against the United 
 States, or any officer thereof, knowing such claim to be false or fraudulent ; or 
 
 [3] Who enters into any agreement or conspiracy to defraud the United 
 States by obtaining, or aiding others to obtain, the allowance or payment of 
 any false or fraudulent claim; or 
 
 [4] Who, for the purpose of obtaining, or aiding others to obtain, the ap- 
 proval, allowance, or payment of any claim against the United States or 
 against any officer thereof, makes or uses, or procures, or advises the making 
 or use of, any writing or other paper, knowing the same to contain any false 
 or fraudulent statements ; or 
 
 [5] Who, for the purpose of obtaining, or aiding others to obtain, the ap- 
 proval, allowance, or payment of any claim against the United States or any 
 officer thereof, makes, or procures, or advises the making of, any oath to any 
 fact or to any writing or other paper knowing such oath to be false ; or 
 
PUNITIVE ARTICLES. 273 
 
 [6] Who, for the purpose of obtaining, or aiding others to obtain, the ap- 
 proval, allowance, or payment of any claim against the United States or any 
 officer thereof, forges or counterfeits, or procures, or advises the forging or 
 counterfeiting of any signature upon any writing or other paper, or uses, or 
 procures, or advises the use of any such signature, knowing the same to be 
 forged or counterfeited ; or 
 
 [7] Who, having charge, possession, custody, or control of any money or 
 other property of the United States, furnished or intended for the military 
 service thereof, knowingly delivers, or causes to be delivered, to any person 
 having authority to receive the same, any amount thereof less than that for 
 which he receives a certificate or receipt ; or 
 
 [8] Who, being authorized to make or deliver any paper certifying the re- 
 ceipt of any property of the United States furnished or intended for the mili- 
 tary service thereof, makes or delivers to any person such writing, without 
 having full knowledge of the truth of the statements therein contained and 
 with intent to defraud the United States ; or 
 
 [9] Who steals, embezzles, knowingly and willfully misappropriates, applies 
 to his own use or benefit, or wrongfully or knowingly sells or disposes of any 
 ordnance, arms, equipments, ammunition, clothing, subsistence stores, money, 
 or other property of the United States furnished or intended for the military 
 service thereof; or 
 
 [10] Who knowingly purchases or receives in pledge for any obligation or 
 indebtedness from any soldier, officer, or other person, who is a part of or 
 employed in said forces or service, any ordnance, arms, equipment, ammuni- 
 tion, clothing, subsistence stores, or other property of the United States, such 
 soldier, officer,, or other person not having lawful right to sell or pledge the 
 same: 
 
 Shall, on conviction thereof, be punished by fine or imprisonment, or by 
 such other punishment as a court-martial may adjudge, or by any or all of 
 said penalties. And if any person, being guilty of any of the offenses afore- 
 said while in the military service of the United States, receives his discharge 
 or is dismissed from the service, he shall continue to be liable to be arrested 
 and held for trial and sentence by a court-martial in the same manner and to 
 the same extent as if he had not received such discharge nor been dismissed. 
 
 Definitions and Principles. 
 
 See the respective headings under which the defenses denned by 
 this article are treated below. 
 
 Analysis and Pkoof. 
 
 The article applies to any person subject to military law. See 
 article 2. 
 
 The article embraces a large number of offenses which may be 
 treated under headings, corresponding to the numbered paragraphs 
 of the article, as follows : 
 
 I. Making or causing to be made a false or fraululent claim. 
 
 II. Presenting or causing to be presented for approval or payment 
 a false or fraudulent claim. 
 
 70844°— 16 19 
 
274 MANUAL FOB COURTS-MARTIAL. 
 
 III. Entering into an agreement or conspiracy to defraud the 
 United States through false claims. 
 
 IV. Making, using, procuring, or advising the making or use of a 
 false writing or other paper in connection with claims. 
 
 V. False oath in connection with claims. 
 
 VI. Forgery, etc., of signature in connection with claims. 
 
 VII. Delivering less than amount called for by receipt. 
 
 VIII. Making or delivering receipt without having knowledge 
 that the same is true. 
 
 IX. Embezzlement, misappropriation, sale, etc., of military prop- 
 erty. 
 
 X. Purchasing or receiving in pledge of military property. 
 
 I. MAKING OR CAUSING TO BE MADE A FALSE OK FRAUDULENT CLAIM. 
 
 Making a claim is a distinct act from presenting it. A claim may 
 be made in one place and presented in another. This section does not 
 relate to personal claims against an officer of the United States, but 
 to claims against the United States made to such, officer or otherwise. 
 It is not necessary that the claim be allowed or paid nor that it be 
 made by the person to be benefited by the allowance or payment. 
 The claim must be made or caused to be made with knowledge of its 
 fictitious or dishonest character. This does not include claims, how- 
 ever groundless they may be, that are honestly believed by the maker, 
 to be valid, nor claims that are merely made negligently or without 
 ordinary prudence, but it does include claims made by a person who 
 has the belief of the false character of the claim that the ordinarily 
 prudent man would have entertained under the circumstances. (See 
 also the discussion under " II " of this article.) 
 
 An instance of making a false claim would be where an officer 
 having a claim respecting property lost in the military service know- 
 ingly includes articles that were not in fact lost and submits such 
 claim to his commanding officer for the action of the board. 
 
 (a) That the accused made or caused to be made a certain claim 
 against the United States as alleged. 
 
 (6) That such claim was false or fraudulent in the particulars 
 specified. 
 
 (c) That when the accused made the claim or caused it to be made 
 he knew that it was false or fraudulent in such particulars. 
 
 (d) The amount involved, as alleged. 
 
PUNITIVE ARTICLES. 275 
 
 II. PRESENTING OR CAUSING TO BE PRESENTED FOR APPROVAL OR PAYMENT 
 A FALSE OR FRAUDULENT CLAIM. 
 
 See second paragraph of the article and matter under heading " I." 
 
 The claim must be presented to some person having authority to 
 approve or pay it. False and fraudulent claims include not only 
 those containing some material false sfatement, but also claims that 
 the person presenting knows to have been paid, or for some other 
 reason knows he is not authorized to present or receive money on. 
 
 Where an officer knows that a certain duly assigned pay account 
 of his is outstanding and that the assignee can collect on it if he 
 chooses to do so, it is no defense to a charge against such officer of 
 presenting for payment a second account covering the same period 
 as the assigned account that the second account was presented rely- 
 ing on the assignee's statement that he would not present the first. 
 But where the accused has good grounds to believe and actually does 
 believe when he presents the second account that the assigned account 
 had been canceled or surrendered by the assignee, his presentation 
 of the second claim does not constitute this offense. A cancellation 
 or surrender of the first account after the presentation of the second 
 account is, of course, no defense to the charge. 
 
 Presenting to a paymaster a false final statement, knowing it to 
 be false, is an example of an offense under this paragraph. 
 
 (a) That the accused presented or caused to be presented for ap- 
 proval or payment to a certain person in the civil or military service 
 of the United States, a certain claim against the United States, as 
 alleged. 
 
 (&) That such claim was false or fraudulent in the particulars 
 alleged. 
 
 (e) That when the accused presented the claim or caused it to be 
 presented he knew it was fictitious or dishonest in such particulars. 
 
 (d) The amount involved, as alleged. 
 
 III. ENTERING INTO AN AGREEMENT OR CONSPIRACY TO DEFRAUD THE 
 UNITED STATES THROUGH FALSE CLAIMS. 
 
 See the third paragraph of this article. 
 
 A conspiracy is the corrupt agreeing together of two or more per- 
 sons to do by concerted action something unlawful either as a means 
 or an end. (Bishop, vol. 2, p. 98.) 
 
 The mere entry into a corrupt agreement for the purpose of de- 
 frauding the United States through any of the means specified con- 
 stitutes the offense. An example of this offense is an agreement be- 
 
276 MANUAL FOE COURTS-MARTIAL. 
 
 tween a contractor and an officer to defraud the United States by 
 means of a padded voucher to be certified as correct by the officer. 
 
 (a) That the accused and one or more other persons named or 
 described entered into an agreement. 
 
 (&) That the object of the agreement was to defraud the United 
 States. 
 
 (c) That the means by which the fraud was to be effected were 
 to obtain or assist certain other persons to obtain the allowance or 
 payment of a certain false or fraudulent claim, as specified. 
 
 (d) The amount involved, as alleged. 
 
 IV. MAKING, USING, PROCURING, OR ADVISING THE MAKING OR USE OF A 
 FALSE WRITING OR OTHER PAPER IN CONNECTION WITH CLAIMS. 
 
 See the fourth paragraph of the article, and matter under head- 
 ings " I " and " II." 
 
 It is not necessary to the offense of making a writing knowing it 
 to contain false or fraudulent statements that such writing be used 
 or attempted to be used, or that the claim in support of which it was 
 made be presented for approval, allowance, or payment. The false 
 or fraudulent statement should, however, be material. 
 
 In the offense of procuring the making or use of the writing or 
 other paper, the paper must be made or used; but in the offense of 
 advising such acts the making or use of the paper is not necessary. 
 Examples of offenses under this paragraph are: Willfully inducing 
 another to make to the United States a lease of premises containing 
 a false and fraudulent statement with a view of obtaining the allow- 
 ance of a false claim for rent against the United States ; falsification 
 by a soldier of an entry in the company clothing book for the pur- 
 pose described in this paragraph of the article; and the making by 
 an officer in his pay account of false and fraudulent statements with 
 a view to securing the payment of such account. 
 
 (a) That the accused made or used or procured or advised the 
 making or use of a certain writing or other paper, as alleged. 
 
 (b) That certain statements in such writing or other papers were 
 false or fraudulent, as alleged. 
 
 (c) That the accused knew this. 
 
 (d) The facts and circumstances indicating that the act of the ac- 
 cused was for the purpose of obtaining or aiding certain others to 
 obtain the approval, allowance, or payment of a certain claim or 
 claims against the United States, as specified. 
 
 (e) The amount involved, as alleged. 
 
PUNITIVE ABTICLES. 277 
 
 V. FALSE OATH IN CONNECTION WITH CLAIMS. 
 
 See the fifth paragraph of the article and matter under headings 
 
 "I," "II," and "IV." 
 
 PEOOF. 
 
 (a) That the accused made or procured or advised the making of 
 an oath to a certain fact or to a certain writing or other paper, as 
 alleged. 
 
 (b) That such oath was false, as alleged. 
 
 (c) That the accused knew it was false. 
 
 (d) The facts and circumstances of the case indicating that the 
 act was for the purpose of obtaining or aiding certain others to ob- 
 tain the approval, allowance, or payment of a certain claim or claims 
 against the United States, as alleged. 
 
 See the sixth paragraph of the article and matter under headings 
 " I " and " II " above. 
 
 The term " forges or counterfeits " includes any fraudulent making 
 of another's signature, whether an attempt is made to imitate the 
 handwriting or not. 
 
 (a) That the accused forged or counterfeited the signature of a 
 certain person on a certain writing or other paper or that he pro- 
 cured or advised the act as specified; or that he used the forged or 
 counterfeited signature of a certain person or procured or advised its 
 use, knowing such signature to be forged or counterfeited, as alleged. 
 
 (b) The facts and circumstances of the case indicating that his 
 act was for the purpose of obtaining or aiding certain others to 
 obtain the approval, allowance, or payment of a certain claim or 
 claims against the United States as alleged. 
 
 VII. DELIVERING LESS THAN AMOUNT CALLED FOE BY RECEIPT. 
 
 See the seventh paragraph of the article. 
 
 It is immaterial in this offense by what means, whether by deceit, 
 collusion, or otherwise, the accused effected the transaction, or what 
 his purpose was in so doing. 
 
 Instances of this offense are : 
 
 A contractor gave a receipt for a greater amount than was due 
 him from the United States. Thereupon the disbursing officer gave 
 him the full amount called for by the receipt, but received back from 
 the contractor the excess over the amount actually due. 
 
278 MANUAL FOB COURTS-MARTIAL. 
 
 A disbursing officer, having delivered to a creditor of the United 
 States less money than was actually due, received a receipt signed 
 in blank by the creditor, which he afterwards completed by writing 
 the true amount due. 
 
 (a) That the accused had charge, possession, custody, or control 
 of certain money or property of the United States furnished or 
 intended for the military service thereof, as alleged. 
 
 (b) That he obtained a receipt for a certain amount or quantity 
 of such money or property, as alleged. 
 
 (c) That for such receipt he knowingly delivered, or caused to 
 be delivered, to a certain person having authority to receive it an 
 amount or quantity of such money or property less than the amount 
 or quantity thereof specified in such receipt. 
 
 (d) The value of the undelivered money or property, as alleged. 
 
 VIII. MAKING OR DELIVERING RECEIPT WITHOUT HAVING KNOWLEDGE 
 THAT THE SAME IS TRUE. 
 
 See the eighth paragraph of the article. 
 
 The following is an instance of an offense under this paragraph : 
 An officer, being in collusion with a contractor, knowingly received 
 from him an amount of supplies intended for the military service 
 less than the amount shown on the receipt for the supplies, which 
 receipt was certified to by the officer and delivered to the contractor 
 with the intent to defraud the United States. 
 
 PROOF. 
 
 (a) That the accused was authorized to make or deliver a certifi- 
 cate of the receipt from a certain person of certain property of the 
 United States furnished or intended for the military service thereof, 
 as alleged. 
 
 (5) That he made or delivered to such person such certificate, as 
 alleged. 
 
 (c) That such certificate was made or delivered without the ac- 
 cused having full knowledge of the truth of a certain material state- 
 ment or statements therein. 
 
 (d) The facts and circumstances indicating that his act was done 
 with intent to defraud the United States. 
 
 (e) The amount involved, as alleged. 
 
 IX. EMBEZZLEMENT, MISAPPROPRIATION, SALE, ETC., OF MILITARY 
 
 PROPERTY. 
 
 For definitions and principles respecting larceny and embezzle- 
 ment, see headings " V " and " VII " under the ninety-third article. 
 
PUNITIVE ARTICLES. 279 
 
 Misappropriating is devoting to any unauthorized purpose. The 
 misapplication meant is where such purpose is for the party's own 
 use or benefit. 
 
 , For the definition of " disposes of," see heading " I " under the 
 eightieth article. 
 
 The larceny, embezzlement, etc., must be of the particular kind of 
 property mentioned in the article. Post exchange and company 
 funds and money appropriated for other than the military service 
 do not come within the description "money of the United States 
 furnished or intended for the military service thereof." The term 
 " embezzlement " as used in this article does not include acts or 
 omissions not within the definition of embezzlement, but which are 
 expressly declared by statute to be embezzlements. Such statutory 
 embezzlements are chargeable, however, under the ninety-sixth article. 
 
 The misappropriation of the property or money need not be for 
 the benefit of the accused ; the words " to his own use and benefit " 
 qualifies the words " applies only." 
 
 Instances of misappropriation are: 
 
 An officer of the Quartermaster's Department used teams, tools, 
 and other public property in his possession as such officer in erecting 
 buildings, etc., for the benefit of an association composed mainly of 
 civilians, of which he was a member. 
 
 An officer of the Quartermaster's Department loaned public prop- 
 erty (corn) to a contractor for the purpose of enabling him to fill 
 a contract made with the United States through another officer. 
 
 An instance of misapplication is the temporary use by a quarter- 
 master of Government horses in his charge to draw his private car- 
 riage on nonpublic business. 
 
 In larceny and embezzlement : 
 
 (a) See proof under headings " V " and " VII " under the ninety- 
 third article. 
 
 (5) That the property belonged to the United States and that it 
 was furnished or intended for the military service thereof. 
 
 In misappropriation and misapplication: 
 
 (a) That the accused misappropriated or applied to his own use 
 certain property in the manner alleged. 
 
 (5) That such property belonged to the United States and that 
 it was furnished or intended for the military service thereof; 
 
 (c) The facts and circumstances of the case indicating that the 
 act of the accused was willfully and knowingly done. 
 
 (d) The value of the property, as specified. 
 
280 MANUAL FOE COURTS-MARTIAL. 
 
 In wrongful sale or disposition: 
 
 (a) -That the accused sold or in a certain manner disposed of cer- 
 tain property, as specified. 
 
 (b) That such property belonged to the United States and that it 
 was furnished or intended for the military service thereof. 
 
 (c) The facts and circumstances indicating that the act was know- 
 ingly or wrongfully done. 
 
 (d) The value of the property, as specified. 
 
 X. PURCHASING OR RECEIVING IN PLEDGE OF MILITARY PROPERTY. 
 
 See the tenth paragraph of the article and matter under fifty- 
 fifth article. 
 
 To constitute this offense the accused must know not only that the 
 person selling or pawning the property was in one of the specified 
 classes but that the property was the property of the United States. 
 As to " knowingly " see " Definitions and principles " under fifty- 
 fifth article. 
 
 PROOF. 
 
 (a) That the accused purchased, or received in pledge, for a cer- 
 tain obligation or indebtedness certain military property of the 
 United States, as alleged, knowing it to be such property. 
 
 (&) That such property was purchased or so received in pledge 
 from a certain soldier, officer, or other person who was a part of or 
 employed in the military service of the United States, as alleged, and 
 that the accused knew the person selling or pledging the property to 
 be such soldier, officer, or other person. 
 
 (c) That such soldier, officer, or other person had not the lawful 
 right to sell or pledge such property. 
 
 (d) The value of the property, as alleged. 
 
 NINETY-FIFTH ARTICLE. 
 
 445. Any officer or cadet who is convicted of conduct unbecoming an officer and 
 a gentleman shall be dismissed from the service. 
 
 Definitions and Principles. 
 
 The conduct contemplated is action or behavior in an official 
 capacity which, in dishonoring or disgracing the individual as an 
 officer, seriously compromises his character and standing as a gentle- 
 man, or action or behavior in an unofficial or private capacity which, 
 in dishonoring or disgracing the individual personally as a gentle- 
 man, seriously compromises his position as an officer and exhibits 
 him as morally unworthy to remain a member of the honorable pro- 
 fession of arms. (Winthrop, p. 1106.) 
 
 There are certain moral attributes common to the ideal officer and 
 the perfect gentleman, a lack of which is indicated by acts of dis- 
 
PUNITIVE AKTICLEE, 281 
 
 honesty or unfair dealing ; of indecency or indecorum ; of lawlessness, 
 injustice, or cruelty. 
 
 Not every one is or can be expected to meet ideal standards or to 
 possess the attributes in the exact degree demanded by the standards 
 of his own time ; but there is a limit of tolerance below which the in- 
 dividual standards in these respects of an officer or cadet can not fall 
 without his being morally unfit to be an officer or cadet of to be con- 
 sidered a gentleman. 
 
 This article contemplates such conduct by an officer or cadet which, 
 taking all the circumstances into consideration, satisfactorily shows 
 such moral unfitness. 
 
 This article includes acts made punishable by any other article of 
 war, provided such acts amount to conduct unbecoming an officei and 
 a gentleman; thus, an officer who embezzles military property vio- 
 lates both this and the preceding article. 
 
 Instances of violation of this article are : 
 
 Knowingly making a false official statement ; dishonorable neglect 
 to pay debts; opening and reading another's letters; giving a check 
 on a bank where there were no funds to meet it, and without intend- 
 ing that there should be; using insulting or defamatory language to 
 another officer in his presence, or about him to other military per- 
 sons; being grossly drunk and conspicuously disorderly in a public 
 place; public association with notorious prostitutes; cruel treatment 
 of soldiers; committing or attempting to commit a crime involving 
 moral turpitude ; failing without a good cause to support his family. 
 
 For other instances, see Digest, . pages 140-143, and Winthrop, 
 pages 1107-1115. 
 
 Analysis and Proof. 
 
 This article applies to officers and cadets only. 
 The article defines one offense, viz : 
 
 I. CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN. 
 
 (a) That the accused did or omitted to do the acts as alleged. 
 
 (b) The circumstances, intent, motive, etc., as specified. 
 
 NINETY-SIXTH ARTICLE. 
 
 446. Though not mentioned in these articles, all disorders and neglects to the 
 prejudice of good order and military discipline, all conduct of a nature to 
 bring discredit upon the military service, and all crimes or offenses not capital, 
 
282 MANUAL FOB. COURTS-MARTIAL. 
 
 of which persons subject to military law may be guilty, shall be taken cogni- 
 zance of by a general or special or summary court-martial, according to the 
 nature and degree of the offense, and punished at the discretion of such court. 
 
 Definitions and Principles. 
 
 See matter under the respective headings under which the offenses 
 are treated. 
 
 Analysis and Proof. 
 
 The article applies to any person subject to military law. See 
 article 2. The article embraces offenses falling within the classes 
 described therein, and not mentioned in the other punitive articles. 
 The offenses may be treated under the following headings: 
 
 I. Disorders and neglects to the prejudice of good order and mili- 
 tary discipline. 
 
 II. Conduct of a nature to bring discredit upon the military 
 service. 
 
 III. Crimes or offenses not capital. 
 
 I. DISORDERS AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND MILI- 
 TARY DISCIPLINE. 
 
 The disorders and neglects include all acts or omissions to the 
 prejudice of good order and military discipline not made punishable 
 by any of the preceding articles. 
 
 By the term " to the prejudice," etc., is to be understood directly 
 prejudicial, not indirectly or remotely merely. An irregular or 
 improper act on the part of an officer or soldier can scarcely be con- 
 ceived which may not be regarded as in some indirect or remote 
 sense prejudicing military discipline; but it is hardly to be sup- 
 posed that the article contemplated such distant effects, and the 
 same is, therefore, deemed properly to be confined to cases in which 
 the prejudice is reasonably direct and palpable. ( Winthrop, p. 1123.) 
 
 Instances of such disorders and neglects in the case of officers are : 
 Disobedience of standing orders, or of the orders of an officer when 
 the offense is not chargeable under a specific article; allowing a sol- 
 dier to go on duty knowing him to be drunk ; rendering himself unfit 
 for duty by excessive use of intoxicants ; drunkenness. 
 
 Instances of such disorders and neglects in the cases of enlisted 
 men are : Failing to appear on duty with a proper uniform ; appear- 
 ing with dirty clothing ; malingering ; abusing public animals ; refus- 
 ing to submit to treatment necessary to render him fit for duty ; re- 
 fusing to submit to a necessary and proper operation not endangering 
 life (see G. O. 43, W. D., 1906) ; careless discharge of firearms; 
 personating an officer ; making false statements to an officer in regard 
 to matters of duty. 
 
PUNITIVE ABTXCLES. 283 
 
 (a) That the accused did or failed to do the acts alleged. 
 
 (b) The circumstances, intent, etc., as specified. 
 
 II. CONDUCT OF A NATURE TO BRING DISCREDIT UPON THE MILITARY 
 
 SERVICE. 
 
 " Discredit," as here used, means to injure the reputation of. 
 
 The principal object of including this phrase in the general article 
 was to make military offenses those acts or omissions o'f retired sol- 
 diers which were not elsewhere made punishable by the Articles of 
 War but which are of a nature to bring discredit on the service, such 
 as a failure to pay debts. 
 
 There is, however, a limited field for the application of this part 
 of the general article to soldiers on the active list in cases where 
 their discreditable conduct is not made punishable by any specific 
 article or by the other parts of the general article. 
 
 PEOOF. 
 
 (a) That the accused did or failed to do the acts alleged. 
 (&) The circumstances, intent, etc., as specified. 
 
 III. CRIMES OR OFFENSES NOT CAPITAL. 
 
 The crimes referred to in A. W. 96 manifestly embrace those not 
 capital committed in violation of public law as enforced by the civil 
 power. (U. S. v. Grafton, 206 U. S., 348.) 
 
 All crimes or offenses wherever committed that are not made 
 punishable by death are included, except such as are specifically in- 
 cluded in some other article and (in view of the ninety-second ar- 
 ticle) except murder or rape committed in time of peace within 
 the geographical limits of the States of the Union and the District 
 of Columbia. 
 
 Within this description would be a noncapital crime which, al- 
 though designated by the laws of the jurisdiction where committed 
 with one of the names used, for instance, in the ninety-third article, 
 is not within the common-law definition of the offense, 
 
 Thus section 90 of the Federal Penal Code of 1910 provides that 
 a failure by an officer to render accounts for public money received 
 by him unless authorized to retain it as salary, pay, or emolument 
 is an embezzlement of such funds. Such an embezzlement not being 
 within the definition of embezzlement as the term is used in the 
 ninety-third and ninety-fourth articles would be chargeable under 
 the general article. 
 
 The elements of some of the more common crimes that are charge- 
 able under this article will now be discussed. 
 
284 MANUAL FOR COURTS-MARTIAL. 
 
 (1) Assault. 
 
 (2) Assault and battery. — See matter under heading "IX" under 
 ninety-third article. 
 
 A battery is any unlawful touching or injury, however slight, to 
 the person of another directly or indirectly done in an angry, re- 
 vengeful, rude or insolent manner. ' Throwing water or spitting in 
 a person's face is a battery. So, merely taking hold of another's 
 clothing, or pushing another against him, or striking a horse on 
 which he is riding causing him to be thrown ; striking his cane while 
 in his hand, is a battery when done unlawfully and in the manner 
 described. 
 
 If the injury is accidentally inflicted in doing a lawful act without 
 culpable negligence the offense is not committed ; but where personal 
 injury results from the reckless doing of an act likely to result in 
 such injury, the offense is committed. 
 
 It is no defense that the injury took place on a person for which 
 
 " it was not intended, or that the injury was not the immediate result 
 
 of the defendant's acts. Thus, if a person throws a firecracker in a 
 
 crowd where it is tossed from hand to hand and finally explodes and 
 
 puts out a man's eye, the offense is committed. 
 
 (3.) Assault with a dangerous weapon, instrument, or other 
 thing. — See matter under heading " IX," under Ninety-third article. 
 
 Weapons, etc., are dangerous when they are used in such manner 
 that they are likely to produce death or great bodily harm. Mere 
 capability of being so used is not enough. 
 
 Boiling water may be so used as to be a dangerous thing, and a 
 pistol may be so used as not to be a dangerous weapon. 
 
 (4.) Forgery. — At common law "forgery is the fraudulent mak* 
 ing of a false writing which, if genuine, would be apparently of 
 some legal efficacy." (Bishop, vol. 2, p. 301.) 
 
 Some of the instruments that are subjects of forgery are checks, 
 indorsements, orders for the delivery of money or goods, railroad 
 tickets, and receipts. 
 
 A false writing includes a false instrument that is in part or en- 
 tirely printed, engraved, written with a pencil, or made by photog- 
 raphy or other device. 
 
 A false writing may be made by materially altering an existing 
 writing, by filling in a paper signed in blank, or by signing an instru- 
 ment already written. 
 
 The writing must be false — must purport to be what it is not. 
 
 Thus, signing another's name to a check with intent to defraud is 
 forgery, as the instrument purports on its face to be what it is not. 
 But where, after the false signature of such person is added the word 
 iy and the signature of the person making the check, thus indicat- 
 
PUNITIVE AETIOLES. 285 
 
 ing an authority to sign, the offense is not forgery even if no such 
 authority exists, as the check on its face is what it purports to be. 
 
 Forgery may be committed by signing one's own name to an instru- 
 ment. Thus, where a check payable to the order of a certain person 
 comes into the hands of another of the same name, he commits for- 
 gery, when, knowing the check to be another's, he indorses it with 
 his own name, intending to defraud. 
 
 Forgery may also be committed by signing a fictitious name, as 
 where a person signs a check payable to himself with a fictitious 
 name; but when he passes a check signed by him with a fictitious 
 name, credit being extended to him without regard to his name, 
 forgery is not committed. 
 
 To constitute a forgery the instrument must have apparent legal 
 efficacy. The fraudulent making of an instrument affirmatively in- 
 valid on its face is not a forgery. But this requirement does not 
 ordinarily prevent the fraudulent making of a signature on a check, 
 for instance, from being a forgery even if there be no resemblance to 
 the genuine signature and the name is misspelled. 
 
 The false writing must be made with intent to defraud. A per- 
 son who signs another's name to an instrument believing that he 
 has authority to do so does not commit a forgery. 
 
 It is immaterial, however, that anyone be actually defrauded or 
 that no further step be made toward carrying out the intent to 
 defraud than the making of the false writing. 
 
 (5) Sodomy. — See assault with intent to commit sodomy under 
 heading " IX," under ninety-third article. 
 
 PROOF. 
 
 Crimes in general: 
 
 (a) That the accused did or failed to do the acts alleged. 
 
 (6) The circumstances, intent, etc., as specified. 
 
 (1) Assault: 
 
 (a) That the accused did the overt act alleged. 
 
 (o) The facts and circumstances of the case indicating either that 
 such an act was an actual attempt with force and violence to do a 
 corporal hurt to a certain person or that such act was apparently 
 such an attempt and conveyed to the mind of the person set upon 
 a well-grounded apprehension of such injury. 
 
 (2) Assault and battery: 
 
 (a) That the accused assaulted a certain person, as alleged. 
 (&) That an injury resulted to such person, as specified. 
 
 (3) Assault with a dangerous weapon, instrument, or other thing: 
 (a) That the accused assaulted a certain person with a certain 
 
 weapon, instrument, or thing. 
 
286 MANUAL FOE COTJBTS-MABTIAL. 
 
 (&) That facts and circumstances of the. case indicating that such 
 weapon, instrument, or thing was used in a manner likely to produce 
 death or great bodily harm. 
 
 (4) Forgery: 
 
 (a) That a certain instrument was made. (The instrument itself 
 should be produced, if available.) 
 
 (b) That such instrument is a forgery, 
 (o) That the accused forged it. 
 
 (d) The facts and circumstances of the case indicating the intent 
 of the accused thereby to defraud a certain person. 
 
 (5) Sodomy: 
 
 See proof under heading " IX," under ninety-third article. 
 
CHAPTEK XVIII. 
 COURTS OF INQUIRY. 
 
 Section I: Constitution: Page _ 
 
 447. When and by whom ordered 287 
 
 448. Limitation upon power to convene 288 
 
 449. Discretion as to ordering court ; 288 
 
 Section II: Jurisdiction: 
 
 450. As to persona ' 288 
 
 451. As to time _ .__ 288 
 
 452. As to subject matter * 288 
 
 Section III: Composition: 
 
 453. Members 288 
 
 454. Recorder. 289 
 
 455. Convening order 289 
 
 456. Rank of members 289 
 
 457. Reporter and interpreter , 289 
 
 Section IV: Powers: 
 
 458. To summon and examine witnesses 289 
 
 459. Refusal to appear or testify 289 
 
 460. Contempt 289 
 
 Section V: Procedure: 
 
 461. General principles 290 
 
 462. Presence of party whose conduct is being investigated 290 
 
 463. Counsel ; 290 
 
 464. Challenge 290 
 
 465. Reduced numbers 290 
 
 466. Oaths 290 
 
 467. Examination of witnesses 291 
 
 468. Depositions .' 291 
 
 469. Conclusions 291 
 
 470. Obligation of secrecy 291 
 
 471. Revision by court 291 
 
 472. Publication of proceedings 292 
 
 Section VI: Record: 
 
 473. How authenticated '. . . 292 
 
 474. Disposition of 292 
 
 475. Admissible in evidence : . 292 
 
 Section I. 
 
 CONSTITUTION. 
 
 447. When and by whom ordered.— A court of inquiry to examine 
 into the nature of any transaction of or accusation or imputation 
 against any officer or soldier may be ordered by the President or by 
 
 2S7 
 
288 MANUAL FOB COXJKTS-MAETIAL. 
 
 any commanding officer, but a court of inquiry shall not be ordered 
 by any commanding officer except upon the request of the officer or 
 soldier whose conduct is to be inquired into. (A. W. 97.) 
 
 448. Limitation upon power to convene. — There is no statutory re- 
 striction to the meaning of the term " commanding officer," conse- 
 quently any commander of the officer or soldier who makes the request 
 would have authority to convene the court, but if the charge to be 
 inquired into is beyond the jurisdiction of a court-martial which such 
 commander can appoint, he would not, by analogies of the service in 
 the administration of military justice, be the proper convening au- 
 thority in such case. (Op. .J. A. G., approved by Secretary of War, 
 Sept. 19, 1874.) 
 
 449. Discretion as to ordering court. — Neither the President nor a 
 commanding officer is obliged to order a court of inquiry on demand 
 of an officer or soldier. Where the facts are thoroughly understood 
 by the authority who is requested to order a court of inquiry or can be 
 satisfactorily ascertained by an investigating officer, the command- 
 ing officer may, in his discretion, refuse the application; but in the 
 event of such refusal the party, if not satisfied, may appeal to higher 
 authority. (Winthrop, p. 805.) 
 
 Section II. 
 JURISDICTION. 
 
 450. As to persons. — A court of inquiry may examine into the con- 
 duct of officers or soldiers only (A. W. 97), and the inquiry is con- 
 fined to those actually in the service. (Digest, p. 586, XVIII, B.) 
 
 451. As to time. — The statute of limitations (A. W. 39) does not 
 apph' to courts of inquiry. There is no legal objection therefore to 
 investigating transactions that are remote in time. 
 
 452. As to subject matter. — The inquiry is limited to transactions of 
 or accusations or imputations against officers or soldiers. (A. W. 97.) 
 The principal uses which courts of inquiry are expected to serve are : 
 (a) For determining whether there should be a trial by court-martial 
 in a particular instance; (5) for informing and advising superior 
 authority in cases which appear not to call for trial by court-martial, 
 but for some other military or administrative action; and (c) for the 
 vindication of character or conduct. (Winthrop, p. 805.) 
 
 Section III. 
 COMPOSITION. 
 
 453. Members. — A court of inquiry shall consist of three or more 
 officers. (A. W. 98.) The Secretary of War may assign retired 
 officers, with their consent, upon courts of inquiry. (Act of Apr. 
 
COURTS OF INQUIRY. 289 
 
 23, 1904.) In time $f war retired officers may be employed on active 
 duty in the discretion of the President. (Act of June 3, 1916.) 
 
 454. Recorder. — For each court of inquiry the authority appointing 
 the court shall appoint a recorder. (A. W. 98.) The recorder is 
 not an adviser of the court nor a prosecutor before it, but will assist 
 the court, if it so desires, in all matters leading to correct conclu- 
 sions of fact and law. 
 
 455. Convening order. — The form of the convening order is similar 
 to that for a court-martial. It details the members and recorder by 
 name, fixes the time and^lace of meeting, specifies the subject matter 
 of inquiry, and directs a report of the facts only, or of the facts with 
 an opinion on the .merits of the case. 
 
 456. Rank of members. — There is no statute prescribing the rank of 
 members, but when it can be avoided they should not be inferior in 
 rank to the officer whose conduct is being inquired into. The decision 
 of the appointing authority, as indicated by the order convening the 
 court, is conclusive as to whether or not it can be avoided. 
 
 457. Reporter and interpreter. — The president of a court of inquiry 
 has the same power to appoint reporters and interpreters as is dele- 
 gated to the president of a court-martial. (A. W. 115.) They are 
 usually paid at the rates fixed by Army regulations for those of 
 courts-martial. (A. E. 986-988.) An enlisted man may be detailed 
 to serve as stenographic reporter and will receive extra pay as pro- 
 vided in A. E. 986. 
 
 Section IV. 
 
 POWERS. 
 
 458. To summon and examine witnesses. — A court of inquiry and the 
 recorder thereof shall have the same power to summon and examine 
 witnesses as is given to a court-martial and the judge advocate 
 thereof. (A. W. 101.) 
 
 459. Refusal to appear or testify .—Any person not subject to military 
 law who, being duly subpoenaed to appear as a witness before a court 
 of inquiry or before any officer, military or civil, designated to take 
 a deposition to be read in evidence before such court, willfully 
 neglects or refuses to appear, or refuses to qualify as a witness, or to 
 testify, or to produce documentary evidence which such person may 
 have been legally subpoenaed to produce, shall be deemed guilty of 
 a misdemeanor and punished as in like offenses with respect to courts- 
 martial. (A. W. 23.) . - 
 
 460. Contempt. — A court of inquiry has no authority to punish for 
 contempt, but any conduct before it to the prejudice of good order 
 and military discipline by persons subject to military law may be 
 made the subject of charges against the offender. 
 
 70844°— 16 20 
 
290 MANUAL FOB COURTS-MARTIAL. 
 
 Section V. 
 PROCEDURE. 
 
 461. General principles. — A court of inquiry is governed by the gen- 
 eral principles of military law, applying the analogies of a court- 
 martial where they are applicable, and recurring to adjudged cases, 
 precedents, rules, authoritative legal opinions, and approved books of 
 legal exposition where there is no pertinent paramount stated rule. 
 (28 Op. Atty. Gen., 364.) A court of inquiry is not really a court 
 in the legal sense of the terra^ for no criminal issue is formed before 
 it, it arraigns no accused, receives no plea, makes no findings of 
 guilt or innocence, awards no punishment, and expresses no opinion 
 unless specially ordered to do so. 
 
 462. Presence of party whose conduct is being investigated. — The pres- 
 ence of the party whose conduct is being investigated is not essential 
 and his absence does not affect the authority of the court to proceed 
 with the hearing. 
 
 463. Counsel. — The party whose conduct is being inquired into shall 
 have the right to be represented before the court by counsel of his 
 own selection, if such counsel be reasonably available. (A. W. 99.) 
 So also the accuser, where there is one, should usually be allowed to 
 be present with counsel, and a similar privilege may properly be ex- 
 tended to any officer who will be materially involved in the inquiry. 
 (Winthrop, p. 812.) 
 
 464. Challenge. — Members of a court of inquiry may be challenged 
 by the party whose conduct is being inquired into, but only for cause 
 stated to the court. The court shall determine the relevancy, and 
 validity of any challenge, and shall not receive a challenge to more 
 than one member at a time. (A. W. 99.) 
 
 465. Reduced numbers. — Where the number of members is reduced by 
 casualty or challenge, the court may proceed with the reduced num- 
 ber, if not below the minimum, but the appointing authority should 
 be notified in order that he may detail new members if he desires to 
 do so. If any testimony has been taken before a new member is 
 added, it should be read to him in the presence of the other members. 
 In the absence of the recorder the junior member can not act as 
 recorder. The proper procedure is to notify the convening authority 
 and adjourn to await the appointment of another recorder. 
 
 466. Oaths. — The recorder of a court of inquiry shall administer to 
 the members the following oath : 
 
 Ton, A. B., do swear (or affirm) that you will well and truly examine and 
 inquire, according to the evidence, into the matter now before you, without 
 partiality, favor, affection, prejudice, or hope of reward. So help you God. 
 
COURTS OF INQUIRY. 291 
 
 After which the president of the court shall administer to the 
 recorder the following oath : 
 
 You, A. B., do swear' (or affirm) that you will, according to your best abili- 
 ties, accurately and impartially record the proceedings of the court and the 
 evidence to be given in the case in hearing. So help you God. 
 
 In case of affirmation the closing sentence of adjuration will be 
 omitted. (A. W. 100.) 
 
 Witnesses shall take the same oath or affirmation that is taken by 
 witnesses before courts-martial, and a reporter or interpreter shall, 
 before entering upon his duties, take the oath or affirmation required 
 of a reporter or an interpreter for a court-martial. (A. W. 101.) ! 
 
 467. Examination of witnesses. — The examination of witnesses may 
 be by the court, by a member thereof, or by the recorder, in the discre- 
 tion of the court. The party whose conduct is being inquired into 
 or his counsel, if any, shall be permitted to examine and cross- 
 examine witnesses so as fully to investigate the circumstances in ques- 
 tion. (A. W. 101.) A witness may not be compelled to answer any 
 question which would tend to incriminate or degrade him. (A. W. 
 24.) 
 
 468. Depositions. — Depositions to be read in evidence before courts 
 of inquiry are taken and admitted in evidence under the same rules 
 governing their taking and admissibility in evidence before courts- 
 martial., (A. W. 25, 26.) 
 
 469. Conclusions. — The court must, as a finding, give its conclusions 
 as to the facts, and, when ordered, must also give an opinion on the 
 merits of the case. The conclusions or opinion may not be unani- 
 mous, in which case a dissenting conclusion or opinion is authorized. 
 
 470. Obligation of secrecy .^The oath of members of a court of in- 
 quiry, unlike that of members of a court-martial, does not enjoin 
 upon them secrecy as to the votes and opinions of members, but under 
 the custom of the service it would be conduct prejudicial to disci- 
 pline to divulge the recommendation or opinion of the court until an- 
 nounced by the appointing authority, or to disclose the vote or opin- 
 ion of a member unless legally required to do so. 
 
 471. Revision by court. — If not satisfied with the investigation, or 
 with the report or opinion, the reviewing authority may reassemble 
 the court, in the same manner as a court-martial, and return the pro- 
 ceedings with direction either to have the investigation pursued 
 further and completed, or the report of the facts made more detailed 
 and comprehensive, or the opinion expressed in terms more definite 
 and unequivocal or more responsive to the original instructions, or to 
 correct or supply some other error or defect. The inquiry not being a 
 trial but an investigation merely, the court may properly be required, 
 upon revision, to reexamine witnesses or to take entirely new testi- 
 
292 MANUAL FOE COTJKTS-MAKTIAL. 
 
 mony, or it may do so of its own motion without orders in connec- 
 tion with the revision. (Winthrop, p. 819.) 
 
 472. Publication of proceedings. — The reviewing authority, having 
 taken final action upon the report or opinion, may publish in orders, 
 in whole or in part, or in substance, the report of the court upon the 
 subject of the inquiry, with the opinion, if any, and the determina- 
 tion had or action taken thereon. Upon considerations, however, of 
 policy or justice, the President or commander may, in his discretion, 
 delay the publication, or omit altogether the publication of, the 
 report, etc., or may publish the result alone, as, for example, that it is 
 determined that no further proceedings are called for in the case. 
 
 Section VI. 
 
 RECORD. 
 
 473. How authenticated. — Each court of inquiry shall keep a record 
 of its proceedings, which shall be authenticated by the signature of 
 the president and the recorder thereof. In case the record can not be 
 authenticated by the recorder, by reason of his death, disability, or 
 absence, it shall be signed by the president and by one other mem- 
 ber of the court. (A. W. 103.) 
 
 474. Disposition of. — The record shall be forwarded to the reviewing 
 authority. (A. W. 103.) Should the court be appointed by the 
 President the proceedings will be sent direct to the Judge Advo- 
 cate General of the Army. To his office will be forwarded the 
 original proceedings of all courts of inquiry with the decisions and 
 orders of the reviewing authority made thereon, accompanied by five 
 copies of the order publishing the case, if there be any, also a copy of 
 every subsequent order affecting the case. When more than one case 
 is embraced in a single order, a sufficient number of copies will be 
 forwarded to enable one to be filed with each record. (A. E. 917.) 
 
 475. Admissible in evidence. — The record of the proceedings of a 
 court of inquiry may be read in evidence before any court-martial or 
 military commission in any case not capital nor extending to the 
 dismissal of an officer, and may also be read in evidence in any pro- 
 ceeding before a court of inquiry or a military board: Provided, 
 That such evidence may be adduced by the defense in capital cases 
 or cases extending to the dismissal of an officer. (A. W. 27. See 
 par. 272.) 
 
CHAPTER XIX. 
 HABEAS CORPUS. 
 
 Page. 
 
 Section I: Purpose of writ 293 
 
 476. To determine legality of restraint. 293 
 
 Section II: Where restraint is by the United States 293 
 
 477. State court without authority 293 
 
 Section III: Return to writ issued by State court 294 
 
 478. To show authority for restraint 294 
 
 (o) Witness held under warrant of attachment 294 
 
 (6) Enlisted man or general prisoner 294 
 
 Section IV: Return to writ issued by a United States court . 295 
 
 479. Contents 295 
 
 Section V: Writ issued in the Philippine Islands 295 
 
 480. When return conclusive. . . ^ 295 
 
 Section I. 
 PURPOSE OF WRIT. 
 
 476.. To determine legality of restraint. — The purpose of the writ of 
 habeas corpus is to bring the person seeking the benefit of it before 
 the court or judge to determine whether or not he is illegally re- 
 • strained of his -liberty. It is a summary remedy for unlawful re- 
 straint of liberty and it can not be made use of to perform the func- 
 tion of a writ of error or an appeal. Where it is decided that the 
 restraint is unlawful he is ordered released, but if the restraint is 
 lawful the writ is dismissed. If the restraint be by virtue of legal 
 process, the validity and present force of such process are the only 
 subjects of investigation. 
 
 Section II. 
 
 WHERE RESTRAINT IS BY THE UNITED STATES. 
 
 477. State court without authority. — A State court is without authority 
 to inquire into the legality of the restraint where it appears that the 
 custody is by virtue " of the authority of the United States," the 
 principle being that no State can authorize one of its judges or courts 
 to exercise judicial power, by habeas corpus, within the jurisdiction 
 of another and independent government. No State judge or court, 
 after they are judicially informed that the party is held under the 
 authority of the United States, has any right to interfere with him 
 or to require him to be brought before them. (Robb v. Connolly, 111 
 U. S., 624, 632; Ableman *. Booth, 21 How., 506, 514; Tarble's case, 
 
 293 
 
294 MANUAL FOE COXJETS-MAETIAL. 
 
 13 Wall., 397, 409.) If a party thus held be illegally imprisoned, it 
 is for the courts or judicial officers of the United States, and those 
 courts or officers alone, to grant him release. (Tarble's case, 13 Wall., 
 397,411.) 
 
 Section III. 
 
 RETURN TO WRIT ISSUED BY STATE COURT. 
 
 478. To show authority for restraint. — The return should be suffi- 
 cient in its detail of facts to show distinctly that the imprisonment is 
 under the authority, or claim and color of the authority, of the 
 United States and to exclude the suspicion of imposition or oppres- 
 sion en the part of the officer making the return. The process or 
 orders under which the petitioner is held should be produced with 
 the return and submitted to inspection in order that the court or the 
 judge issuing the writ may see that the officer is acting in good faith, 
 under the authority cr claim and color of authority of the United 
 States, and not under the mere pretense of having such authority. 
 (Tarble's case, 13 Wall., 397, 409; Covell r. Heyman, 111 U. S., 
 176, 183.) 
 
 (a) Witness held under warrant of attachment. — Where the petitioner 
 is a civilian who has been apprehended under a warrant of attach- 
 ment to be taken before a court-martial to testify as a witness, the 
 officer making the return to the writ issued by a State court or judge 
 will not produce the body, but will, by his return, set forth fully the 
 authority by which he holds the person and allege that the State 
 court, or judge, issuing the writ is without jurisdiction to issue the 
 same and ask to have it dismissed. He will exhibit to the court or 
 judge issuing the writ of habeas corpus the warrant of attachment 
 and the subpoena (and the proof of service of the subpoena) on 
 which the warrant of attachment was based, and also a certified 
 copy of the order convening the court-martial before which the wit- 
 ness was subpoenaed to testify, together with a copy of the charges 
 and specifications in the case in which he was subpoenaed to testify, 
 and an affidavit showing that the witness has failed to appear in 
 response to such subpoena. 
 
 [Note. — See A. R. 997. For form of return, see Form B, Appendix 15.] 
 
 (b) Enlisted man or general prisoner. — The return to a writ of habeas" 
 corpus issued by a State court or judge to produce an enlisted man or 
 a general prisoner and show cause for his detention will show in 
 writing that the subject of the writ is a duly enlisted soldier of the 
 United States or a general prisoner, as the case may be, and set forth 
 fully the cause of his detention, but the officer making the return will 
 decline to produce in court the body of the prisoner named in the 
 
HABEAS CORPUS. 295 
 
 writ, giving as a reason for such refusal the fact that the Supreme 
 Court of the United States has decided that a State court or judge 
 has no jurisdiction in such a case. 
 
 [Note. — See A. R. 998. For form of return, see Form D, Appendix 15. A 
 deserter apprehended by a civil officer authorized by a statute of the United 
 States to apprehend deserters is in the custody of the United States. See U. S. 
 v. Reaves, 126 Fed. Rep., 127.] 
 
 Section IV. 
 RETURN TO WRIT ISSUED BY A UNITED STATES COURT. 
 
 479. Contents. — A writ of habeas corpus issued by a United States 
 court or judge will be promptly obeyed. The person alleged to be 
 illegally restrained of his liberty will be taken before the court from 
 which the wrjt has issued and a return made, setting forth the reasons 
 for his restraint. The officer upon whom such writ is served will at 
 once report the fact of such service by telegraph direct to The Adju- 
 tant General of the Army and the commanding general of the depart- 
 ment, stating briefly the grounds on which the release of the party is 
 sought. 
 
 [Note. — See A. R. 999. For form where a civilian witness is held under war- 
 rant of attachment, see Form A, Appendix 15. For form where an enlisted 
 man or general prisoner is held, see Form C, Appendix 15. For brief of authori- 
 ties when writ is applied for on grounds of age, see Appendix 15.] 
 
 Section V. 
 WRIT ISSUED IN THE PHILIPPINE ISLANDS. 
 
 480. When return conclusive. — It shall be a conclusive answer to a 
 writ of habeas corpus against a military officer or soldier and a suffi- 
 cient excuse for not producing the prisoner if the commanding gen- 
 eral or any gen'eral officer in command of the department or district 
 shall certify that the prisoner is held by him either — 
 
 (a) As a prisoner of war; or 
 
 (b) As a member of the Army, civilian employee thereof, or a 
 camp follower and subject to its discipline; or 
 
 (c) As a prisoner guilty of violation of the laws of war commit- 
 ted in any unpacified province or territory and who has escaped into 
 provinces officially declared to be under civil control and has been 
 there captured by military authorities and is held for trial for such 
 violations of the laws of war. 
 
 [Note. — Sec. 1, Act. No. 272, Philippine Commission, Oct. 21, 1901, and sec. 4, 
 Act. No. 421, id., June 23, 1902. Respectful return in writing will be made in 
 the case of prisoners who may be exempted from jurisdiction by the provisions 
 of these acts stating the facts of the case, but the body of the prisoner will not 
 be produced. In all other cases the return will be made and the body produced 
 before the proper tribunal.] 
 
CHAPTER XX. 
 MISCELLANEOUS AND TRANSITORY PROVISIONS. 
 
 Page. 
 
 Section I: Miscellaneous provisions 297 
 
 481. Injuries to persons or property — Redress 297 
 
 482. Effects of deceased persons — Disposition 298 
 
 483. Inquests 299 
 
 484. Removal of civil suits 300 
 
 485. Complaints of wrongs 300 
 
 486. Articles of War— When effective 301 
 
 Section II: Transitory provision 301 
 
 487. Prior offenses subject to previous laws 301 
 
 Section I. 
 
 MISCELLANEOUS PROVISIONS. 
 
 481. Injuries to persons or property — Redress. — Article 105 imposes 
 upon a commanding officer, upon receipt of a complaint that damage 
 has been done to the property of any person, or that his property has 
 been wrongfully taken, by any person subject to military law, the 
 duty to convene a board of officers consisting of any number from 
 one to three to investigate the complaint. The article provides the 
 administrative machinery by which money reparation for acts of 
 waste, spoil, destruction, or depredation, denounced in A. W. 89 as 
 offenses, shall be made effective. The complaint will more properly 
 be made in writing by the injured party or his representative, and 
 should set forth the details of the injury and be sustained by evi- 
 dence showing it to be meritorious and well founded; and this evi- 
 dence may also properly be required to be exhibited in the form of 
 affidavits or written statements. It is competent, however, for a com- 
 manding officer, apprised by the report of any person in the military 
 service, or by the oral complaint of the party injured, of any such 
 damage, to proceed with the investigation as here outlined in case 
 of written complaint submitted by or in behalf of the party injured 
 and supported by affidavits or written statement. The board will 
 be convened with the least practicable delay, is empowered to 
 summon witnesses, examine them under oath or affirmation, receive 
 depositions or other documentary evidence, and assess the damages 
 against the person or persons determined to be responsible for the 
 
 297 
 
298 MANUAL FOR COURTS-MARTIAL. 
 
 damage or wrongful taking. The board's assessment of damages is 
 subject to the approval of the commanding officer and an assessment 
 thus approved will be stopped against the pay of the offender. The 
 order of the commanding officer directing stoppages authorized by 
 the article is conclusive on any disbursing officer for the payment by 
 him to the injured party of the stoppages. 
 
 The occasions for resorting to the procedure under this article 
 are more frequent in a period pending or immediately succeeding a 
 time of war, or during field operations and maneuvers. As the abso- 
 lute identity of the guilty parties can not always be determined, the 
 article further provides that in such a case ? and when the organiza- 
 tion or detachment to which they belong is known, stoppages to the 
 amount of damages inflicted may be made and assessed in such pro- 
 portion as may be deemed just upon the individual members thereof 
 who are shown to have been present with such organization or detach- 
 ment at the time the damages complained of were inflicted, as de- 
 termined by the approved findings of the board. 
 
 The guilty parties may be tried and punished for the military 
 offense involved in his and their act under A. W. 89, quite irrespec- 
 tively of any proceeding for the reparation of the parties injured 
 had under this article. A trial, however, will preferably be first 
 ordered, since, if reparation be subsequently sought to be made, the 
 commander and the board will have the benefit of any material facts 
 developed upon the original investigation. So, if the accused be 
 acquitted, such acquittal will furnish persuasive but not necessarily 
 conclusive ground for not favorably entertaining the complaint or 
 for reducing the amount to be assessed. 
 
 482. Effects of deceased persons — Disposition. — In case of the death of 
 any person subject to military law, the commanding officer of the 
 place or command will permit the legal representative or widow of 
 the deceased, if present, to take possession of all his effects then in 
 camp or quarters, and if no legal representative or widow be present 
 the commanding officer shall direct a summary court to secure all 
 such effects ; and said summary court shall have authority to convert 
 such effects into cash, by public or private sale, not earlier than 30 
 days after the death of the deceased, and to collect and receive any 
 debts due decedent's estate by local debtors; and as soon as prac- 
 ticable after converting such effects into cash said summary court 
 shall deposit with the proper officer, to be designated in regula- 
 tions, any cash belonging to decedent's estate, and shall transmit a 
 receipt for such deposit, accompanied by any will or other papers of 
 value belonging to the deceased, an inventory of the effects secured 
 by said summary court, and a full account of his transactions to the 
 War Department for action as authorized by law in the settlement 
 of the accounts of deceased officers or enlisted men of the Army ; but 
 
MISCELLANEOUS AND TRANSITORY PROVISIONS. 299 
 
 if in the meantime the legal representative, or widow, shall present 
 himself or herself to take possession of decedent's estate, the said 
 summary court shall turn over to him or her all effects not sold and 
 cash belonging to said estate, together with an inventory and account, 
 and make to the War Department a full report of his transactions. 
 
 The provisions of this article shall be applicable to inmates of the 
 United States Soldiers' Home who die in any United States military 
 hospital outside of the District of Columbia where sent from the 
 home for treatment. (A. W. 112.) 
 
 483. Inquests. — Article 113 imposes upon the summary court-martial 
 the principal duties of the office of coroner at common law, viz, to 
 investigate the cause of sudden, violent, and unnatural deaths. When 
 a person is found dead at a place described in the article, and there 
 is reasonable belief that his death has occurred from violence or 
 other unlawful means, the commanding officer will immediately 
 designate and direct a summary court-martial to investigate the cir- 
 cumstances of the death, to the end that the cause thereof may' be 
 determined and the persons criminally responsible therefor may be 
 brought to justice. The summary court-martial will with the least 
 practicable delay view the body of the deceased and summon and 
 examine, under oath or affirmation, such witnesses as may have knowl- 
 edge of the cause and circumstances of the death. The summary 
 court-martial should warn every person testifying at the inquest 
 Who is accused or suspected that he is not required to give evidence 
 incriminating himself, and that any statement or evidence he gives 
 may be used against him in the event of any further proceedings be- 
 ing instituted. If expert medical testimony is necessary, the com- 
 manding officer will, at the request of the summary court-martial, 
 direct a medical officer to make such examination of the body of the 
 deceased as may be necessary and to appear as a witness at the in- 
 quest. The testimony of each witness will be reduced to writing, 
 and will, except when stenographically reported, be subscribed by 
 him, and will be appended to the report of the inquest. 
 
 If the body of the deceased shows wounds or bruises such as to 
 indicate or create suspicion that he came to his death by violent 
 means, it shall be the duty of the summary court-martial to ascer- 
 tain with as much exactness as possible the precise nature of the 
 wounds or blows and the character of the instrument by which the 
 wounds were inflicted ; the person or persons by whom the fatal blow 
 or blows were dealt; if there were any aiders or abettors; and such 
 other particulars as may afford the means of drawing up, with the 
 precision required by law, the necessary charges and specifications 
 against the person or persons accused of the homicide. 
 
 The summary court officer will render a written report of his 
 investigation to the commanding officer, which report will state his 
 
300 MANUAL FOE COURTS-MARTIAL. 
 
 finding as to the cause of the death and the names of the persons 
 criminally responsible therefor, if in his opinion there be any such. 
 Such persons, though not subject to military law, may, if found at 
 any post over which the United States has exclusive jurisdiction, be 
 confined by the commanding officer for such time as may be necessary 
 for their delivery to the civil authorities. If such persons are subject 
 to military law and appear to be guilty of an offense not triable by 
 court-martial, they will be confined by the commanding officer, who 
 will immediately furnish the proper United States district attorney 
 with a copy of the findings of the summary court officer. 
 
 If the person over whose body the inquest is held is not identified 
 as an officer or soldier, the report of the summary court-martial shall 
 give_a description of the deceased, which shall specify the name, if 
 known, the apparent age, the sex, the color of the eyes and hair, and 
 all marks or other particulars which may assist in the identification 
 of the person. 
 
 [Note. — For form of report of inquest see Appendix 19.] 
 
 484. Removal of civil suits. — When any civil suit or criminal prosecu- 
 tion is commenced in any court of a State against any officer, soldier, 
 or other person in the military service of the United States on ac- 
 count of any act done under color of his office or status, or in respect 
 to which he claims any right, title, or authority under any law of the 
 United States respecting the military forces thereof, or under the 
 law of war, such suit or prosecution may at any time before the trial 
 or final hearing thereof be removed for trial into the district court 
 of the United States in the district where the same is pending in 
 the manner prescribed in section 33 of the act entitled "An Act to 
 codify, revise, and amend the laws relating to the judiciary," ap- 
 proved March 3, 1911 (36 Stat., 1097), and the cause shall thereupon 
 be entered on the docket of said district court and shall proceed 
 therein as if the cause had been originally commenced in said dis- 
 trict court and the same proceedings had been taken in such suit 
 or prosecution in said district court as shall have been had therein in 
 said State court prior to its removal, and said district court shall 
 have full power to hear and determine said cause. (A. W. 117.) 
 
 485. Complaints of wrongs. — Any officer or soldier who believes him- 
 self wronged by his commanding officer, and, upon due application 
 to such commander, is refused redress, may complain to the general 
 commanding in the locality where the officer against whom the com- 
 plaint is made is stationed. The general shall examine into said com- 
 plaint and take proper measures for redressing the wrong complained 
 of ; and he shall, as soon as possible, transmit to the Department of 
 War a true statement of such complaint, with the proceedings had 
 thereon. (A. W. 121. ) 
 
MISCELLANEOUS AND TRANSITORY PBOVISIONS. 301 
 
 486. Articles of War — When effective. — Section 3 of the Act of Con- 
 gress entitled "An Act making appropriations for the support of 
 the Army for the fiscal year ending June 30, 1917, and for other 
 purposes," approved August 29, 1916 (39 Stat., 650-670), amends 
 section 1342, Revised Statutes of the United States, and contains the 
 Articles of War. It is provided by section 4 of the act cited that 
 the Articles of War will be in force and effect on and after March 1, 
 1917, except that "articles 4, 13, 14, 15, 29, 47, 49, and 92 became effec- 
 tive upon the approval of the act, August 29, 1916. 
 
 Section II. 
 TRANSITORY PROVISION. 
 
 487. Prior offenses subject to previous laws.— It is provided by sec- 
 tion 5 of the act of Congress entitled "An Act making appropriations 
 for the support of the Army for the fiscal year ending June 30, 
 1917, and for other purposes," approved August 29, 1916 (39 Stat., 
 670) , that all offenses committed and all penalties, forfeitures, fines, 
 or liabilities incurred prior to the taking effect of that act under any 
 law embraced in or modified, changed, or repealed by that act may be 
 prosecuted, punished, and enforced in the same manner and with 
 the same effect as if that act had not been passed. 
 
APPENDICES. 
 
 No. Page. 
 
 1. The Articles of War 305 
 
 2. System of courts-martial for National Guard not in the service of the United 
 
 States 331 
 
 3. Charge sheet 333 
 
 4. Forms for charges 335 
 
 5. Suggestions for trial judge advocates 351 
 
 6. Form for record — General court-martial and revision proceedings 355 
 
 7. Form for record — Special court-martial 363 
 
 8. Form for record— Summary court-martial 365 
 
 9. Forms for sentences 367 
 
 10. Forms for action by reviewing authority 369 
 
 11. Court-martial orders 373 
 
 (a) General court-martial • 373 
 
 (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 
 
 303 
 
APPENDIX I. 
 THE ARTICLES OF WAR. 
 
 TABLE OF CONTENTS. 
 
 I. PfiEUMINABY PROVISIONS : 
 
 Sec. 1342, Revised Statutes. 
 
 Art. 1. Definitions. 
 
 Art. 2. Persons subject to military law. 
 II. Coukts-Maetial : 
 
 Art. 3. Courts-martial classified. 
 (a.) Composition — 
 
 Art. 4. Who may serve on courts-martial. 
 
 Art. 5. General courts-martial. 
 
 Art. 6. Special courts-martial. 
 
 Art. 7. Summary courts-martial. 
 (6) By whom appointed — 
 
 Art. 8. General courts-martial. 
 
 Art. 9. Special courts-martial. 
 
 Art. 10. Summary courts-martial. 
 
 Art. 11. Appointment of judge advocates. 
 
 (c) Jurisdiction — 
 
 Art. 12. General courts-martial. 
 Art. 13. Special courts-martial. 
 Art. 14. Summary courts-martial. 
 Art. 15. Not exclusive. 
 Art. 16. Officers, how triable. 
 
 (d) Procedure — 
 
 Art. 17. Judge advocate to prosecute. 
 Art. 18. Challenges. 
 Art. 19. Oaths. 
 Art. 20. Continuances. 
 Art. 21. Refusal to plead. 
 Art. 22. Process to obtain witnesses. 
 Art. 23. Refusal to appear or testify. 
 Art. 24. Compulsory self-incrimination prohibited. 
 Art. 25. Depositions — when admissible. 
 Art. 26. Depositions — before whom taken. 
 Art. 27. Courts of inquiry — records of — when admissible. 
 Art. 28. Resignation without acceptance does not release officer. 
 Art. 29. Enlistment without discharge. 
 Art. 30. Closed sessions. 
 Art. 31. Order of voting. 
 Art. 32. Contempts. 
 
 Art. 33. Records — general courts-martial. 
 Art. 34. Records — special and summary courts-martial. 
 70844°— 16 21 305 
 
306 MANUAL FOK COURTS-MARTIAL. 
 
 II. Coubts-Mabtial — Continued. 
 
 (d) Procedure — Continued. 
 
 Art. 35. Diposition of records — general courts-martial. 
 
 Art. 36. Disposition of records — special and summary courts-martial. 
 
 Art. 37. Irregularities — effect of; 
 
 Art. 38. President may prescribe rules. 
 
 (e) Limitations upon prosecutions — 
 
 Art. 39. As to time. 
 
 Art. 40. As to number. 
 (/) Punishments — 
 
 Art. 41. Certain kinds prohibited. 
 
 Art. 42. Places of confinement — when lawful. 
 
 Art. 43. Death sentence — when lawful. 
 
 Art. 44. Cowardice ; fraud ; accessory penalty. 
 
 Art. 45. Maximum limits. 
 (g) Action by appointing or superior authority — 
 
 Art. 46. Approval and execution of sentence. 
 
 Art. 47. Powers incident to power to approve. 
 
 Art. 48. Confirmation — when required. 
 
 Art. 49. Powers incident to power to confirm. 
 
 Art. 50. Mitigation or remission of sentences. 
 
 Art. 51. Suspension of sentences of dismissal or death. 
 
 Art. 52. Suspension of sentence of dishonorable discharge. 
 
 Art. 53. Suspension of sentences of forfeiture or confinement. 
 
 III. Punitive Articles : 
 
 (a) Enlistment; muster; returns — 
 
 Art. 54. Fraudulent enlistment. 
 
 Art. 55. Officer making unlawful enlistment. 
 
 Art. 56. Muster rolls — false muster. 
 
 Art. 57. False returns — omission to render returns. 
 (&) Desertion; absence without leave — 
 
 Art. 58. Desertion. 
 
 Art. 59. Advising or aiding another to desert. 
 
 Art. 60. Entertaining a deserter. 
 
 Art. 61. Absence without leave. 
 
 (c) Disrespect; insubordination; mutiny — 
 
 Art. 62. Disrespect toward the President, Vice President, Congress, 
 
 Secretary of War, governors, legislatures. 
 Art. 63. Disrespect toward superior officers. 
 Art. 64. Assaulting or willfully disobeying superior officer. 
 Art. 65. Insubordinate conduct toward noncommissioned officer. 
 Art. 66. Mutiny or sedition. 
 Art. 67. Failure to suppress mutiny or sedition. 
 Art. 68. Quarrels ; frays ; disorders. 
 
 (d) Arrest; confinement — 
 
 Art. 69. Arrest or confinement of accused persons. 
 Art. 70. Investigation of and action upon charges. 
 Art. 71. Refusal to receive and keep prisoners. 
 Art. 72. Report of prisoners received. 
 Art. 73. Releasing prisoner without proper authority. 
 Art. 74. Delivery of offenders to civil authorities. 
 
 (e) War offenses — 
 
 Art. 75. Misbehavior before the enemy. 
 
 Art. 76. Subordinates compelling commander tc surrender. 
 
APPENDICES. 307 
 
 III Punitive Articles — Continued, 
 (e) War offenses— Continued. 
 
 Art. 77. Improper use of countersign. 
 
 Art. 78. Forcing a safeguard. 
 
 Art. 79. Captured property to be secured for public service. 
 
 Art. 80. Dealing in captured or abandoned property. 
 
 Art. 81. Relieving, corresponding with, or aiding the enemy. 
 
 Art. 82. Spies. 
 (/) Miscellaneous crimes and offenses — 
 
 Art. 83. Military property— willful or negligent loss, damage, jx 
 wrongful disposition of. 
 
 Art. 84. Waste or unlawful disposition of military property issued to 
 soldiers. 
 
 Art. 85. Drunk on duty. 
 
 Art. 86. Misbehavior of sentinel. 
 
 Art. 87. Personal interest in sale of provisions. 
 
 Art. 88. Intimidation of persons bringing provisions. 
 
 Art. 89. Good order to be maintained and wrongs redressed. 
 
 Art. 90. Provoking speeches or gestures. 
 
 Art. 91. Dueling. 
 
 Art. 92. Murder — rape. 
 
 Art. 93. Various crimes. 
 
 Art. 94. Frauds against the Government. 
 
 Art. 95. Conduct unbecoming an officer and gentleman. 
 
 Art. 96. General article. 
 
 IV. Courts of Inquiry: 
 
 Art. 97. When and by whom ordered. 
 
 Art. 98. Composition. 
 
 Art. 99. Challenges. 
 
 Art. 100. Oath of members and recorder. 
 
 Art. 101. Powers ; procedure. 
 
 Art. 102. Opinion on merits of case. 
 
 Art. 103. Record of proceedings — how authenticated. 
 
 V. Miscellaneous Provisions : 
 
 Art. 104. Disciplinary powers of commanding officers. 
 
 Art. 105. Injuries to person or property — redress of. 
 
 Art. 106. Arrest of deserters by civil officials. 
 
 Art. 107. Soldiers to make good time lost. 
 
 Art. 108. Soldiers — separation from the service. 
 
 Are. 109. Oath of enlistment. 
 
 Art. 110. Certain articles to be read and explained. 
 
 Art. 111. Copy of record of trial. 
 
 Art. 112. Effects of deceased persons — disposition of. 
 
 Art. 113. Inquests. 
 
 Art. 114. Authority to administer oaths. 
 
 Art. 115. Appointment of reporters and interpreters. 
 
 Art. 116. Powers of assistant judge advocates. 
 
 Art. 117. Removal of civil suits. 
 
 Art. 118. Officers — separation from service. 
 
 Art. 119. Rank and precedence among Regulars, Militia, and Volun- 
 teers. 
 
 Art. 120. Command when different corps or commands happen to 
 join. 
 
 Art. 121. Complaints of wrongs. 
 
308 MANUAL FOB COTJBTS-MAKTXAL. 
 
 Table showing numbers of old articles and of corresponding new articles. 
 
 OLD AND NEW CODES. 
 
 Old 
 
 New 
 
 Old 
 
 New 
 
 Old 
 
 -New 
 
 Old 
 
 New 
 
 number. 
 
 number. 
 
 number. 
 
 number. 
 
 number. 
 
 number. 
 
 number. 
 
 number. 
 
 1 
 
 
 32 
 
 61 
 
 63 
 
 2 
 
 96 
 
 43 
 
 2 
 
 109,110 
 
 33 
 
 61 
 
 64 
 
 2 
 
 97 
 
 42 
 
 3 
 
 55 
 
 34 
 
 61 
 
 65 
 
 69 
 
 98 
 
 41 
 
 4 
 
 108 
 
 35 
 
 61 
 
 66 
 
 69 
 
 99 
 
 118 
 
 5 
 
 56 
 
 36 
 
 
 67 
 
 71 
 
 100 
 
 44 
 
 6 
 
 7 
 
 56 
 57 
 
 37 
 38 
 
 
 68 
 69 
 
 72 
 73 
 
 101 
 102 
 
 
 41,85 
 
 40 
 
 8 
 
 57 
 
 39 
 
 86 
 
 70 
 
 70 
 
 103 
 
 39 
 
 9 
 
 79 
 
 40 
 
 61 
 
 71 
 
 70 
 
 104 
 
 46 
 
 10 
 
 
 41 
 
 75 
 
 l 72 
 
 8 
 
 105 
 
 48 
 
 11 
 
 
 42 
 
 75 
 
 173 
 
 8 
 
 106 
 
 48 
 
 12 
 
 56 
 
 43 
 
 76 
 
 74 
 
 11 
 
 107 
 
 48 
 
 13 
 
 56 
 
 44 
 
 77 
 
 175 
 
 5 
 
 108 
 
 48 
 
 14 
 
 15 
 
 56 
 83 
 
 45 
 46 
 
 81 
 81 
 
 76 
 
 77 
 
 
 109 
 111 
 
 46 
 51 
 
 4 
 
 16 
 
 84 
 
 47 
 
 58 
 
 78 
 
 4 
 
 112 
 
 50 
 
 17 
 
 84 
 
 48 
 
 107 
 
 79 
 
 16 
 
 113 
 
 35 
 
 18 
 
 87 
 
 49 
 
 28 
 
 181 
 
 6,9,13 
 
 114 
 
 111 
 
 19 
 
 62 
 
 50 
 
 29,60 
 
 182 
 
 6,9,13 
 
 115 
 
 97 
 
 20 
 
 63 
 
 51 
 
 59 
 
 183 
 
 13,14 
 
 116 
 
 98 
 
 21 
 22 
 23 
 
 64 
 66 
 67 
 
 52 
 53 
 54 
 
 
 84 
 85 
 86 
 
 19 
 19 
 32 
 
 117 
 118 
 119 
 
 100 
 101 
 102 
 
 
 89,105 
 
 24 
 
 68 
 
 55 
 
 89,105 
 
 87 
 
 
 120 
 
 103 
 
 25 
 
 90 
 
 56 
 
 88 
 
 88 
 
 18 
 
 121 
 
 27 
 
 26 
 
 91 
 
 57 
 
 78 
 
 89 
 
 21 
 
 122 
 
 120 
 
 27 
 
 91 
 
 58 
 
 92,93 
 
 90 
 
 17 
 
 124 
 
 119 
 
 28 
 
 91 
 
 59 
 
 74 
 
 91 
 
 25 
 
 125 
 
 112 
 
 29 
 
 121 
 
 60 
 
 2,94 
 
 92 
 
 19 
 
 126 
 
 112 
 
 30 
 
 121 
 
 61 
 
 95 
 
 93 
 
 20,70 
 
 127 
 
 112 
 
 31 
 
 61 
 
 62 
 
 93,96 
 
 95 
 
 31 
 
 128 
 
 110 
 
 1 Old articles 72, 73, 75, 81, 82, and 83 were replaced by the act of Mar. 2, 1913 (37 
 Stat., 723), effective July 1, 1913. 
 
 [Note. — Except as otherwise specified herein this code becomes effective on 
 March 1, 1917.] 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled. 
 
 * * * * w * * 
 
 Sec. 3. That section thirteen hundred and forty-two of the Revised Statutes 
 of the United States be, and the same is hereby, amended to read as follows : 
 
 " Sec. 1342. The articles included in this section shall be known as the Ar- 
 ticles of War and shall at all times and in all places govern the armies of the 
 United States. 
 
 " I. Preliminary Provisions. 
 
 "Article 1. Definitions. — The following words when used in these articles 
 shall be construed in the sense indicated in this Article, unless the context 
 shows that a different sense is intended, namely : 
 
 "(a) The word ' officer ' shall be construed to refer to a commissioned officer ; 
 
 "(b) The word 'soldier' shall be construed as including a noncommissioned 
 officer, a private, or any other enlisted man; 
 
 "(c) The word 'company' shall be understood as including a troop or bat- 
 tery; and 
 
 "(d) The word ' battalion ' shall be understood as including a squadron. 
 
 "Art. 2. Persons stibjict to military law. — The following persons are sub- 
 ject to these articles and shall be understood as included in the term ' any per- 
 son subject to military law,' or ' persons subject to military law,' whenever used 
 in these articles : Provided, That nothing contained in this Act, except as specifi- 
 
APPENDICES. 309 
 
 eally provided in Article two, subparagraph (e), shall be construed to apply to 
 any person under the United States naval jurisdiction, unless otherwise specifi- 
 cally provided by law. 
 
 "(a) All officers and soldiers belonging to the Regular Army of the United 
 States ; all volunteers, from the dates of their muster or acceptance into the 
 military service of the United States; and all other persons lawfully called, 
 drafted or ordered into, or to duty or for training in, the said service, from the 
 dates they are required by the terms of the call, draft or order to obey the same ; 
 
 "(b) Cadets; 
 
 "(c) Officers and soldiers of the Marine Corps when detached for service with 
 the armies of the United States by order of the President: Provided, That an 
 officer or soldier of the Marine Corps when so detached may be tried by military 
 court-martial for an offense committed against the laws for the government of 
 the naval service prior to his detachment, and for an offense committed against 
 these articles he may be tried by a naval court-martial after such detachment 
 ceases ; 
 
 "(d) All retainers to the camp and all persons accompanying or serving with 
 the armies of the United States without the territorial jurisdiction of the 
 United States, and in time of war all such retainers and persons accompanying 
 or serving with the armies of the United States in the field, both within and 
 without the territorial jurisdiction of the United States, though not otherwise 
 subject to these articles ; 
 
 "(e) All persons under sentence adjudged by courts-martial; 
 
 "(f) All persons admitted into the Regular Army Soldiers' Home at Washing- 
 ton, District of Columbia. 
 
 " II. COURTS-MARTIAL. 
 
 "Art. 3. Coukts-mabtial classified. — Courts-martial shall be of three kinds, 
 namely : 
 
 " First, general courts-martial ; 
 
 " Second, special courts-martial ; and 
 
 " Third, summary courts-martial. 
 
 "A. COMPOSITION. 
 
 "Abt. 4. Who mat serve on coubts-mabtial. — All officers in the military 
 service of the United States, and officers of the Marine Corps when detached for 
 service with the Army by order of the President, shall be competent to serve on 
 courts-martial for the trial of any persons who may lawfully be brought before 
 such courts for trial. 
 
 [Note. — This article became effective on August 29, 1916.] 
 
 "Abt. 5. General courts-maetial. — General courts-martial may consist of any 
 number of officers from five to thirteen, inclusive ; but they shall not consist of 
 less than thirteen, when that number can be convened without manifest injury 
 to the service. 
 
 "Art. 6. Special courts-martial. — Special courts-martial may consist of any 
 number of officers from three to five, inclusive. 
 
 "Art. 7. Summary courts-martial. — A summary court-martial shall consist 
 of one officer. 
 
 " B. BY WHOM APPOINTED. 
 
 "Abt. 8. General courts-mabtial. — The President of the United States, the 
 commanding officer of a territorial division or department, the Superintendent 
 of the Military Academy, the commanding officer of an army, an army corps, a 
 
310 MANUAL FOR COURTS-MARTIAL. 
 
 division, or a separate brigade, and, when empowered by the President, the com- 
 manding officer of any district or of any force or body of troops may appoint 
 general courts-martial; but when any such commander is the accuser or the 
 prosecutor of the person or persons to be tried, the court shall be appointed by 
 superior competent authority, and no officer shall be eligible to sit as a member 
 of such court when he is the accuser or a witness for the prosecution. 
 
 "Art. 9. Special courts-martial.- — The commanding officer of a district, gar- 
 rison, fort, camp, or other place where troops are on duty, and the commanding 
 officer of a brigade, regiment, detached .battalion, or other detached command 
 may appoint special courts-martial ; but when any such commanding officer is 
 the accuser or the prosecutor of the person or persons to be tried, the court 
 shall be appointed by superior authority, and may in any case be appointed by 
 superior authority when by the latter deemed desirable ; and no officer shall be 
 eligible to sit as a member of such court when he is the accuser or a witness for 
 the prosecution. 
 
 "Art. 10. Summary courts-martial. — The commanding officer of a garrison, 
 fort, camp, or other place where troops are on duty, and the commanding officer 
 of a regiment, detached battalion, detached company, or other detachment may 
 appoint summary courts-martial; but such summary courts-martial may in any 
 case be appointed by superior authority when by the latter deemed desirable: 
 Provided, That when but one officer is present with a command he shall be the 
 summary court-martial of that command and shall hear and determine cases 
 brought before him. 
 
 "Art. 11. Appointment of judge advocates. — 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. 
 
 " c. jurisdiction. 
 
 "Art. 12. General courts-martial. — General courts-martial shall have power 
 to try any person subject to military law for any crime or offense made pun- 
 ishable by these articles and any other person who by the law of war is subject 
 to trial by military tribunals : Provided, That no officer shall be brought to trial 
 before a general court-martial appointed by the Superintendent of the Military 
 Academy. 
 
 "Art. 13. Special courts-martial. — Special courts-martial shall have power 
 to try any person subject to military law, except an officer, for any crime or 
 offense not capital made punishable by these articles : Provided, That the Presi- 
 dent may, by regulations, which he may modify from time to time, except from 
 the jurisdiction of special courts-martial any class or classes of persons subject 
 to military law. 
 
 " Special courts-martial shall not have power <o adjudge dishonorable dis- 
 charge, nor confinement in excess of six months, nor to adjudge forfeiture of 
 more than six months' pay. 
 
 [Note. — This article became effective on August 29, 1916.] 
 
 "Art. 14. Summary courts-martial. — Summary courts-martial shall have 
 power to try any person subject to military law, except an officer, a cadet, or a 
 soldier holding the privileges of a certificate of eligibility to promotion, for any 
 crime or offense not capital made punishable by these articles : Provided, That 
 noncommissioned officers shall not, if they object thereto, be brought to trial 
 before a summary court-martial without the authority of the officer competent 
 to bring them to trial before a general court-martial: Provided further, That 
 the President may, by regulations, which he may modify from time to time, ex- 
 
APPENDICES. 311 
 
 cept from the jurisdiction of summary courts-martial any class or classes of 
 persons subject to military law. 
 
 " Summary courts-martial shall not have power to adjudge confinement in 
 excess of three months, nor to adjudge the forfeiture of more than three months' 
 pay : Provided, That when the summary court officer is also the commanding officer 
 no sentence of such summary court-martial adjudging confinement at hard labor 
 or forfeiture of pay, or both, for a period in excess of one month shall be carried 
 into execution until the same shall have been approved by superior authority. 
 
 [Note. — This article became effective on August 29, 1916.] 
 
 "Art. 15. Not exclusive. — The provisions of these articles conferring jurisdic- 
 tion upon courts-martial shall not be construed as depriving military com- 
 missions, provost courts, or other military tribunals of concurrent jurisdiction in 
 respect of offenders or offenses that by the law of war may be lawfully triable 
 by such military commissions, provost courts, or other military tribunals. 
 
 [Note.— This article became effective on August 29, 1916.] 
 
 "Abt. 16. Officers ; how tbiable. — Officers shall be triable only by general 
 courts-martial, and in no case shall an officer, when it can be avoided, be tried 
 by officers inferior to him in rank. 
 
 " D. PROCEDURE. 
 
 "Art. 17. Judge advocate to prosecute. — The judge advocate of a general or 
 special court-martial shall prosecute in the name of the United States, and shall, 
 under the direction of the court, prepare the record of its proceedings. The 
 accused shall have the right to be represented before the court by counsel of his 
 own selection for his defense, if such counsel be reasonably available, but should 
 he, for any reason, be unrepresented by counsel, the judge advocate shall from 
 time to time throughout the proceedings advise the accused of his legal rights. 
 
 "Art. 18. Challenges. — Members of a general or special court-martial may 
 be challenged by the accused, but only for cause stated to the court. The 
 court shall determine the relevancy and validity thereof, and shall not receive 
 a challenge to more than one member at a time. 
 
 "Art. 19. Oaths. — The judge advocate of a general or special court-martial 
 shall administer to the members of the court, before they proceed upon any 
 trial, the following oath or affirmation: 'You, A. B., do swear (or affirm) that 
 you will well and truly try and determine, according to the evidence, the matter 
 now before you, between the United States of America and the person to be 
 tried, and that you will duly administer justice, without partiality, favor, or 
 affection, according to the provisions of the rules and articles for the govern- 
 ment of the armies of the United States, and if any doubt should arise, not ex- 
 plained by said articles, then according to your conscience, the best of your un- 
 derstanding, and the custom of war in like cases ; and you do further swear 
 (or affirm) that you will not divulge the findings or sentence of the court until 
 they shall be published by the proper authority, except to the judge advocate 
 and assistant judge advocate; neither will you disclose or discover the vote or 
 opinion of any particular member of the court-martial, unless required to give 
 evidence thereof as a witness by a court of justice in due course of law. So 
 help you God.' 
 
 " When the oath or affirmation has been administered to the members of a 
 general or special court-martial, the president of the court shall administer to 
 the judge advocate and to each assistant judge advocate, if any, an oath or 
 affirmation in the following form: 'You, A. .B., do swear (or affirm) that you 
 
312 MANUAL FOB COURTS-MARTIAL. 
 
 will not divulge the findings or sentence of the court to any but the proper au- 
 thority until they shall be duly disclosed by the same. So help you God.* 
 
 " All persons who give evidence before a court-martial shall be examined on 
 oath or affirmation in the following form: 'You swear (or affirm) that the 
 evidence you shall give in the case now in hearing shall be the truth, the whole 
 truth, and nothing but the truth. So help you God.' 
 
 " Every reporter of the proceedings of a court-martial shall, before entering 
 upon his duties, make oath or affirmation in the following form: 'You swear 
 (or affirm) that you will faithfully perform the duties of reporter to this 
 court. So help you God.' 
 
 " Every interpreter in the trial of any case before a court-martial shall, be- 
 fore entering upon his duties, make oath or affirmation in the following form: 
 'You swear (or affirm) that you will truly interpret in the case now in hear- 
 ing. So help you God.' 
 
 " In case of affirmation the closing sentence of adjuration will be omitted. 
 
 "Aet. 20. Continuances. — A court-martial may, for reasonable cause, grant 
 a continuance to either party for such time and as often as may appear to be 
 just. 
 
 "Aet. 21. Refusal to plead. — When the accused, arraigned before a court- 
 inartial, from obstinacy and deliberate design stands mute or answers foreign 
 to the purpose, the court may proceed to trial and judgment as if he had pleaded 
 not guilty. 
 
 "Abt. 22. 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 jurisdiction, may lawfully issue ; but such 
 process shall run to any part of the United States, its Territories, and posses- 
 sions. 
 
 "Aet. 23. Refusal to appeae ob testify. — Every person not subject to mili- 
 tary law who, being duly subpoenaed to appear as a witness before any military 
 court, commission, court of inquiry, or board, or before any officer, military or 
 civil, designated to take a deposition to be read in evidence before such court, 
 commission, court of inquiry, or board, willfully neglects or refuses to appear, 
 or refuses to qualify as a witness, or to testify, or produce documentary evi- 
 dence which such person may have been legally subpoenaed to produce, shall 
 be deemed guilty of a misdemeanor, for which such person shall be punished 
 on information in the district court of the United States or in a court of original 
 criminal jurisdiction in any of the territorial possessions of the United States, jur- 
 isdiction being hereby conferred upon such courts for such purpose ; and it shall 
 be the duty of the United States district attorney or the officer prosecuting for 
 the Government in any such court of original criminal jurisdicton, on the certi- 
 fication of the facts to him by the military court, commission, court of inquiry, 
 or board, to file an information against and prosecute the person so offending, and 
 the punishment of such person, on conviction, shall be a fine of not more than 
 $500 or imprisonment not to exceed six months, or both, at the discretion of 
 the court : Provided, That the fees of such witness and his mileage, at the 
 rates allowed to witnesses attending the courts of the United States, shall be 
 duly paid or tendered said witness, such amounts to be paid out of the appro- 
 priation for the compensation of witnesses. 
 
 "Aet. 24. Compulsory self-incbimination peohibited. — No witness before a 
 military court, commission, court of inquiry, or board, or before any officer, 
 military or civil, designated to take a deposition to be read in evidence before a 
 military court, commission, court of inquiry, or board, shall be compelled to 
 
APPENDICES. 313 
 
 incriminate himself or to answer any questions which may tend to incriminate 
 or degrade him. 
 
 "Abt. 25. — Depositions — When admissible. — A duly authenticated deposition 
 taken upon reasonable notice to the opposite party may be read in evidence be- 
 fore any military court or commission in any case not capital, or in any pro- 
 ceeding before a court of inquiry or a military board, if such deposition be taken 
 when the witness resides, is found, or is about to go beyond the State, Territory, 
 or District in which the court, commission, or board is ordered to sit, or beyond 
 the distance of one hundred miles from the place of trial or hearing, or when it 
 appears to the satisfaction ofjthe court, commission, board, or appointing au- 
 thority that the witness, by reason of age, sickness, bodily infirmity, imprison- 
 ment, or other reasonable cause, is unable to appear and testify in person at 
 the place of trial or hearing: Provided, That testimony by deposition may be 
 adduced for the defense in capital cases. 
 
 "Art. 26. Depositions — Before whom taken. — Depositions to be read in evi- 
 dence before military courts, commissions, courts of inquiry, or military boards, 
 or for other use in military administration, may be taken before and authenti- 
 cated by any officer, military or civil, authorized by the laws of the United 
 States or by the laws of the place where the deposition is taken to administer 
 oaths. 
 
 "Art. 27. Courts of inquiry — Records of, when admissible. — The record of 
 the proceedings of a court of inquiry may be read in evidence before any court- 
 martial or military commission in any case not capital nor extending to the dis- 
 missal of an officer, and may also be read in evidence in any proceeding before 
 a court of inquiry or a military board: Provided, That such evidence may be 
 adduced by the defense in capital cases or cases extending to the dismissal of 
 an officer. 
 
 "Art. 28. Resignation without acceptance does not release officer. — Any 
 officer who, having tendered his resignation and prior to due notice of the 
 acceptance of the same, quits his post or proper duties without leave and with 
 intent to absent himself permanently therefrom shall be deemed a deserter. 
 
 "Art. 29. Enlistment without discharge. — Any soldier who, without having 
 first received a regular discharge, again enlists in the Army, or in the militia 
 when in the service of the United States, or in the Navy or Marine Corps of the 
 United States, or in any foreign army, shall be deemed to have deserted the 
 service of the United States ; and, where the enlistment is in one of the forces^ 
 of the United States mentioned above, to have fraudulently enlisted therein. 
 
 [Note.— This article became effective on August 29, 1916.] 
 
 "Art. 30. Closed sessions. — Whenever a general or special court-martial shall 
 sit in closed session, the judge advocate and the assistant judge advocate, if any, 
 shall withdraw ; and when their legal advice or their assistance in referring to 
 the recorded evidence is required, it shall be obtained in open court and in the 
 presence of the accused and of his counsel if there be any. 
 
 "Art. 31. Order of voting. — Members of a general or special court-martial, in 
 giving their votes, shall begin with the junior in rank. 
 
 "Art. 32. Contempts. — A court-martial may punish at discretion, subject to 
 the limitations contained in Article fourteen, any person who uses any menacing 
 words, signs, or gestures in its presence, or who disturbs its proceedings by any 
 riot or disorder. 
 
 "Art. 33. Records — General courts-martial. — 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 authenticated by the signature of the presi- 
 dent and the judge advocate; but in case the record can not be authenticated 
 
314 MANUAL FOR COURTS-MARTIAL. 
 
 by the judge advocate, by reason of his death, disability, or absence, it shall be 
 signed by the president and an assistant judge advocate, if any ; and if there 
 be no assistant judge advocate, or in case of his death, disability, or absence, 
 then by the president and one other member of the court. 
 
 "Abt. 34. Records — Special and summary courts-martial. — Each special 
 court-martial and each summary court-martial shall keep a record of its proceed- 
 ings, separate for each case, which record shall contain such matter and be 
 authenticated in such manner as may be required by regulations which the 
 President may from time to time prescribe. 
 
 "Art. 35. Disposition or records — General courts-mabtial. — The judge advo- 
 cate of each general court-martial shall, with such expedition as circumstances 
 may permit, forward to the appointing authority or to his successor in com- 
 mand the original record of the proceedings of such court in the trial of each 
 case. All records of such proceedings shall, after having been finally acted 
 upon, be transmitted to the Judge Advocate General of the Army. 
 
 "Art. 36. Disposition of records — Special and summart courts-martial. — 
 After having been acted upon by the officer appointing the court, or by the officer 
 commanding for the time being, the record of each trial by special court-martial 
 and a report of each trial by summary court-martial shall be transmitted to 
 such general readquarters as the President may designate in regulations, there 
 to be filed in the office of the judge advocate. When no longer of use, records 
 of special and summary courts-martial may be destroyed. 
 
 "Art. 37. Irregularities — Effect of. — The proceedings of a court-martial 
 shall not be held invalid, nor the findings or sentence disapproved, in any case 
 on the ground of improper admission or rejection of evidence or for any error 
 as to any matter of pleading or procedure unless in the opinion of the reviewing 
 or confirming authority, after an examination of the entire proceedings, it 
 shall appear that the error complained of has injuriously affected the substan- 
 tial rights of an accused : Provided, That the act or omission upon which the 
 accused has been tried constitutes an offense denounced and made punishable 
 by one or more of these articles : Provided further, That the omission of the 
 words ' hard labor ' in any sentence of a court-martial adjudging imprisonment 
 or confinement shall not be construed as depriving the authorities executing 
 such sentence of imprisonment or confinement of the power to require hard 
 labor as a part of the punishment in any case where it is authorized by the 
 Executive order prescribing maximum punishments. 
 
 "Art. 38. President mat prescribe rules. — The President may by regula- 
 tions, which he may modify from time to time, prescribe the procedure, includ- 
 ing modes of proof, in cases before courts-martial, courts of inquiry, military 
 commissions, and other military tribunals : Provided, That nothing contrary to 
 or inconsistent with these articles shall be so prescribed : Provided further, 
 That all rules made in pursuance of this article shall be laid before the Congress 
 annually. 
 
 " E. LIMITATIONS UPON PROSECUTIONS. 
 
 "Art. 39. As to time. — Except for desertion committed in time of war, or 
 for mutiny or murder, no person subject to military law shall be liable to be 
 tried or punished by a court-martial for any crime or offense committed more 
 than two years before the arraignment of such person : Provided, That for de- 
 sertion in time of peace or for any crime or offense punishable under articles 
 ninety-three and ninety-four of this code the period of limitations upon trial and 
 punishment by "court-martial shall be three years : Provided further, That the 
 period of any absence of the accused from the jurisdiction of the United States, 
 
APPENDICES. 315 
 
 and also any period during which by reason of some manifest impediment the 
 accused shall not have been amenable to military justice, shall be excluded in 
 computing the aforesaid periods of limitation : And provided further, That this 
 article shall not have the effect to authorize the trial or punishment for any 
 crime or offense barred by the provisions of existing law. 
 
 "Art. 40. As to number. — No person shall be tried a second time for the same 
 offense. 
 
 " F. PUNISHMENTS. 
 
 "Abt. 41. Certain kinds prohibited. — Punishment by flogging, or by brand- 
 ing, marking, or tattooing on the body is prohibited. 
 
 "Art. 42. Places of confinement — When lawful. — Except for desertion in 
 time of war, repeated desertion in time of peace, and mutiny, no person shall 
 under the sentence of a court-martial be punished by confinement in a peni- 
 tentiary unless an act or omission of which he is convicted is recognized as an 
 offense of a civil nature by some statute of the United States, or at the common 
 law as the same exists in the District of Columbia, or by way of commutation 
 of a death sentence, and unless, also, the period of confinement authorized and 
 adjudged by such court-martial is one year or more : Provided, That when a 
 sentence of confinement is adjudged by- a court-martial upon conviction of two 
 or more acts or omissions any one of which is punishable under these articles 
 by confinement in a penitentiary, the entire sentence of confinement may be 
 executed in a penitentiary : Provided further, That penitentiary confinement 
 hereby authorized may be served in any penitentiary directly or indirectly 
 under the jurisdiction of the United States : Provided further, That persons 
 sentenced to dishonorable discharge and to confinement not in a penitentiary 
 shall be confined in the United States Disciplinary Barracks or elsewhere as 
 the Secretary of War or the reviewing authority may direct, but not in a 
 penitentiary. 
 
 "Art. 43. Death sentence — When lawful. — No person shall, by general 
 court-martial, be convicted of an offense for which the death penalty is made 
 mandatory by law, nor sentenced to suffer death, except by the concurrence of 
 two-thirds of the members of said court-martial and- for an offense in these 
 articles expressly made punishable by death. AH other convictions and sen- 
 tences, whether by general or special . court-martial, may be determined by a 
 majority of the members present. 
 
 "Art. 44. Cowardice; fraud — Accessory penaltt. — When an officer is dis- 
 missed from the servce for cowardice or fraud, the crime, punishment, name, 
 and place of abode of the delinquent shall be published in the newspapers in 
 and about the camp and in the State from which the offender came or where 
 he usually resides ; and after such publication it shall be scandalous for an 
 officer to associate with him. 
 
 "Art. 45. BIaximum limits.— Whenever the punishment for a crime or offense 
 made punishable by these articles is left to the discretion of the court-martial, 
 the punishment shall not, in time of peace, exceed such limit or limits as the 
 President may from time to time prescribe. 
 
 " g. action by appointing or superior authority. 
 
 "Abt. 46. Approval and execution of sentence. — No sentence of a court- 
 martial shall be carried into execution until the same shall have been approved 
 by the officer appointing the court or by the officer commanding for the time 
 being. 
 
316 MANUAL FOE COURTS-MARTIAL. 
 
 "Abt. 47. Powers incident to power to approve. — The power to approve the 
 sentence of a court-martial shall he held to include : 
 
 "(a) The power to approve or disapprove a finding and to approve only so 
 much of a finding of guilty of a particular offense as involves a finding of 
 guilty of a lesser included offense when, in the opinion of the authority having 
 power to approve, the evidence of record requires a finding of only the lesser 
 degree of guilt; and 
 
 "(b) The power to approve or disapprove the whole or any part of the 
 sentence. 
 
 [Note. — This article became effective on August 29, 1916.] 
 
 "Art. 48. Confirmation — When required. — In addition to the approval re- 
 quired by article forty-six, confirmation by the President is required in the 
 following cases before the sentence of a court-martial is carried into execution, 
 namely : 
 
 "(a) Any sentence respecting a general officer; 
 
 "(b) Any sentence extending to the dismissal of an officer, except that in 
 time of war a sentence extending to the dismissal of an officer below the grade 
 of 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; 
 
 "(c) Any sentence extending to the suspension or dismissal of a cadet; and 
 
 "(d) Any sentence of death, except in the cases of persons convicted in time 
 of war of murder, rape, mutiny, desertion, or as spies ; and in such excepted 
 cases a sentence of death may be carried into execution upon confirmation by 
 the commanding general of the Army in the field or by the commanding general 
 of the territorial department or division. 
 
 " When the authority competent to confirm the sentence has already acted as 
 the approving authority no additional confirmation by him is necessary. 
 
 "Art. 49. 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 
 
 "(b) The power to confirm or disapprove the whole or any part of the sen- 
 tence. 
 
 [Note. — This article became effective on August 29, 1916.] 
 
 "Art. 50. Mitigation or remission of sentences. — The power to order the 
 execution of the sentence adjudged by a court-martial shall be held to include, 
 inter alia, the power to mitigate or remit the whole or any part of the sentence, 
 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 im- 
 posed the sentence, and the same power may be exercised 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 Presi- 
 dent shall be remitted or mitigated by any other authority. 
 
 " The power of remission and mitigation shall extend to all uncollected for- 
 feitures adjudged by sentence of a court-martial. 
 
APPENDICES. 317 
 
 "Abt. 51. Suspension of sentences or dismissal ob death. — The authority 
 competent to order the execution of a sentence of dismissal of an officer or- a 
 sentence of death may suspend such sentence until the pleasure of the President 
 be known, and in case of such suspension a copy of the order of suspension, 
 together with a copy of the record of trial, shall immediately be transmitted 
 to the President". 
 
 "Abt. 52. Suspension or sentence of dishonorable dischabge. — The author- 
 ity competent to order the execution of a sentence, including dishonorable dis- 
 charge, may suspend the execution of the dishonorable discharge until the sol- 
 dier'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 W.ar. 
 
 "Art. 53. Suspension of sentences of foefeituee ob confinement. — The au- 
 thority competent to order the execution of a sentence adjudged by a court- 
 martial may, if the sentence involve neither dismissal nor dishonorable dis- 
 charge, suspend the execution of the sentence in so far as it relates to the for- 
 feiture of pay or to confinement, 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 Bar- 
 racks, 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. 
 
 " III. Punitive Aeticles. 
 
 "a. enlistment ; mustee ; eetuens. 
 
 "Abt." 54. Fraudulent enlistment. — Any person who shall procure himself 
 to be enlisted in the military service of the United States by means of willful 
 misrepresentation or concealment as to his qualifications for enlistment, and 
 shall receive pay or allowances under such enlistment, shall be punished as a 
 court-martial may direct. 
 
 "Abt. 55. Officer making unlawful enlistment. — Any officer who know- 
 ingly enlists or musters into the military service any person whose enlistment 
 or muster in is prohibited by law, regulations, or orders shall be dismissed 
 from the service or suffer such other punishment as a court-martial may direct. 
 
 "Abt. 56. Mustee bolls — False mustee. — At every muster of a regiment, 
 troop, battery, or company the commanding officer thereof shall give to the 
 mustering officer certificates, signed by himself, stating how long absent 'officers 
 have been absent and the reasons of their absence. And the commanding officer 
 of every troop, battery, or company shall give like certificates, stating how long 
 absent noncommissioned officers and private soldiers have been absent and 
 the reasons of their absence. Such reasons and time of absence shall be in- 
 serted in the muster rolls opposite the names of the respective absent officers 
 and soldiers, and the certificates, together with the muster rolls, shall be trans- 
 mitted by the mustering officer to the Department of War as speedily as the 
 distance of the place and muster will admit. Any officer who knowingly makes 
 a false muster of man or animal, or who signs or directs or allows the signing 
 
318 MANUAL FOE COUBTS-MAETIAL. 
 
 of any muster roll knowing the same to contain a false muster or false state- 
 ment as to the absence or pay of an officer or soldier, or who wrongfully takes 
 money or other consideration on mustering in a regiment, company, or other 
 organization, or on signing muster rolls, or who knowingly musters as an officer 
 or soldier a person who is not such officer or soldier, shall be dismissed from 
 the service and suffer such other punishment as a court-martial may direct. 
 
 "Aet. 57. False returns — Omission to bender returns. — Every officer com- 
 manding a regiment, an independent troop, battery, or company, or a garrison, 
 shall, in the beginning of every month, transmit through the proper channels, 
 to the Department of War, an exact return of the same, specifying the names 
 of the officers then absent from their posts, with the reasons for and the time 
 of their absence. Every officer whose duty it is to render to the War Depart- 
 ment or other superior authority a return of the state of the troops under his 
 command, or of the arms, ammunitions, clothing, funds, or other property there- 
 unto belonging, who knowingly makes a false return thereof shall be dismissed 
 from the service and suffer such other punishment as a court-martial may 
 direct. And any officer who, through neglect or design, omits to render such 
 return shall be punished as a court-martial may direct. 
 
 " b. desertion ; absence without leave. 
 
 "Art. 58. Desertion. — Any person subject to military law who deserts or 
 attempts to desert the service of the United States shall, if the offense be com- 
 mitted in time of war, suffer death or such other punishment as a court-martial 
 may direct, and, if the offense be committed at any other time, any punish- 
 ment, excepting death, that a court-martial may direct. 
 
 "Art. 59. Advising or aiding another to desert. — Any person subject to 
 military law who advises or persuades or knowingly assists another to desert 
 the service of the United States shall, if the offense be committed in time of 
 war, suffer death, or such other punishment as a court-martial may direct, and, 
 if the offense be committed at any other time, any punishment, excepting death, 
 that a court-martial may direct. 
 
 "Art. 60. Entertaining a deserter. — Any officer who, after having discovered 
 that a soldier in his command is a deserter from the military or naval service 
 or from the Marine Corps, retains such deserter in his command without in- 
 forming superior authority or the commander of the organization to which the 
 deserter belongs, shall be punished as a court-martial may direct. 
 
 "Art. 61. Absence without leave. — Any person subject to military law who 
 fails to repair at the fixed time to the properly appointed place of duty, or goes 
 from the same without proper leave, or absents himself from his command, 
 guard, quarters, station, or camp without proper leave, shall be punished as a 
 court-martial may direct. 
 
 " c. disrespect ; insubordination ; mutiny. 
 
 "Art. 62. Disrespect toward the President, Vice President, Congress, 
 Secretary of War, governors, legislatures. — Any officer who uses contemptu- 
 ous or disrespectful words against the President, Vice President, the Congress 
 of the United States, the Secretary of War, or the governor or legislature of any 
 State, Territory, or other possession of the United States in which he is 
 quartered shall be dismissed from the service or suffer such other punishment 
 as a court-martial may direct. Any other person subject to military law who 
 so offends shall be punished as a court-martial may direct. 
 
APPENDICES. 319 
 
 "Art. 63. Disrespect toward superior officer. — Any person subject to mili- 
 tary law who behaves himself with disrespect toward his superior officer shall 
 be punished as a court-martial may direct. 
 
 "Art. 64. Assaulting or willfully disobeying superior officer. — Any person 
 subject to military law who, on any pretense whatsover, strikes his superior 
 officer or draws or lifts up any weapon or offers any violence against him, being 
 in the execution of his office, or willfully disobeys any lawful command of his 
 superior officer, shall suffer death or such other punishment as a court-martial 
 may direct. 
 
 "Art. 65. Insubordinate conduct toward noncommissioned officer. — Any 
 soldier who strikes or assaults, or who attempts or threatens to strike or 
 assault, or willfully disobeys- the lawful order of a noncommissioned officer 
 while in the execution of his office, or uses threatening or insulting language, 
 or behaves in an insubordinate, or disrespectful manner toward a noncommis- 
 sioned officer while in the execution of his office, shall be punished as a court- 
 martial may direct. 
 
 "Art. 66. Mutiny or sedition. — Any person subject to military law who 
 attempts to create or who begins, excites, causes, or joins in any mutiny or 
 sedition in any company, party, post, camp, detachment, guard, or other com- 
 mand shall suffer death or such other punishment as a court-martial may 
 direct. 
 
 "Art. 6T. Failure to suppress mutiny or sedition. — Any officer or soldier 
 who, being present at any mutiny or sedition, does not use his utmost endeavor 
 to suppress the same, or knowing or having reason to believe that a mutiny 
 or sedition is to take place, does not without delay give information thereof 
 to his commanding officer shall suffer death or such other punishment as a 
 court-martial may direct. 
 
 "Art. 68. Quarrels ; frays ; disorders. — All officers and noncommissioned 
 officers have power to part and quell all quarrels, frays, and disorders among 
 persons subject to military law and to order officers who take part in the same 
 into arrest, and other persons subject to military law who take part in the 
 same into arrest or confinement, as circumstances may require, until their 
 proper superior officer is acquainted therewith. And whosoever, being so ordered, 
 refuses to obey such officer or noncommissioned officer or draws a weapon 
 upon or otherwise threatens or does violence to him shall be, punished as a 
 court-martial may direct. 
 
 " d. arrest ; confinement. 
 
 "Art. 69. Arrest oe confinement of accused persons. — An officer charged 
 with crime or with a serious offense under these articles shall be placed in 
 arrest by the commanding officer, and in exceptional cases an officer so charged 
 may be placed in confinement by the, same authority. A soldier charged with 
 crime or with a serious offense under these articles shall be placed in confine- 
 ment, and when charged with a minor offense he may be placed in arrest. 
 Any other person subject to military law charged with crime or with a serious 
 offense under these articles shall be placed in confinement or in arrest, as 
 circumstances may require ; and when charged with a minor offense such 
 person may be placed in arrest. Any person placed in arrest under the pro- 
 visions of this article shall thereby be restricted to his barracks, quarters, 
 or tent, unless such limits shall be enlarged by proper authority. Any officer 
 who breaks his arrest or who escapes from confinement before he is set at 
 liberty by proper authority shall be dismissed from the service or suffer such 
 other punishment as a court-martial may direct ; and any other person subject 
 to military law who escapes from confinement or who breaks his arrest before 
 
320 MANUAL FOB COTJBTS-MARTIAL. 
 
 he is set at liberty by proper authority shall be punished as a court-martial 
 may direct. 
 
 "Art. 70. Ivestigation of and action upon charges. — No person put In 
 arrest shall be continued in confinement more than eight days, or until such 
 time as a court-martial can be assembled. When any person is put in arrest 
 for the purpose of trial, except at remote military posts or stations, the officer 
 by whose order he is arrested shall see that a copy of the charges on which 
 he is to be tried is served upon him within eight days after his arrest, and that 
 lie is brought to trial within ten days thereafter, unless the necessities of the 
 service prevent such trial ; and then he shall be brought to trial within thirty 
 days after the expiration of said ten days. If a copy of the charges be not 
 served, or the arrested person be not brought to- trial, as herein required, the 
 arrest shall cease. But persons released from arrest, under the provisions of 
 this article, may be tried, whenever the exigencies of the service shall permit, 
 within twelve months after such release from arrest : Provided, That in time of 
 peace no person shall, against his objection, be brought to trial before a general 
 court-martial within a period of five days subsequent to the service of charges 
 upon him. 
 
 "Art. 71. Refusal to receive and keep prisoners. — No provost marshal or 
 commander of a guard shall refuse to receive or keep any prisoner committed 
 to his charge by an officer belonging to the forces of the United States, provided 
 the officer committing shall, at the time, .deliver an account in writing, signed 
 by himself, of the crime or offense charged against the prisoner. Any officer 
 or soldier so refusing shall be punished as a court-martial may direct. 
 
 "Art. 72. Report of prisoners received. — Every commander of a guard to 
 whose charge a prisoner is committed shall, within twenty-four hours after such 
 confinement, or as soon as he is relieved from his guard, report in writing to the 
 commanding officer the name of such prisoner, the offense charged against 
 him, and the name of the officer committing him ; and if he fails to make such 
 report he shall be punished as a court-martial may direct. 
 
 "Akt. 73. Releasing prisoner without proper authority. — Any person sub- 
 ject to military law who, without proper authority, releases any prisoner duly 
 committed to his charge, or who through neglect or design suffers any prisoner 
 so committed to escape, shall be punished as a court-martial may direct. 
 
 "Art. 74. Delivery of offenders to civil authorities. — When any person 
 subject to military law, except one who is held by the military authorities to 
 answer, or who is awaiting trial or result of trial, or who is undergoing sentence 
 for a crime or offense punishable under these articles, is accused of a crime 
 or offense committed within the geographical limits of the States of the Union 
 and the District of Columbia, and punishable by the laws of the land, the 
 commanding officer is required, except in time of war, upon application duly 
 made, to use his utmost endeavor to deliver over such accused person to the 
 civil authorities, or to aid the officers of justice in apprehending and securing 
 him, in order that he may be brought to trial. Any commanding officer who 
 upon such application refuses or willfully neglects, except in time of war, to 
 deliver over such accused person to the civil authorities or to aid the officers 
 of justice in apprehending and securing him shall be dismissed from the service 
 or suffer such other punishment as a court-martial may direct. 
 
 " When, under the provisions of this article, delivery is made to the civil 
 authorities of an offender undergoing sentence of a court-martial, such delivery, 
 if followed by conviction, shall be held to interrupt the execution of the sentence 
 of the court-martial, and the offender shall be returned to military custody, 
 after having answered to the civil authorities for his offense, for the comple- 
 tion of the said court-martial sentence. 
 
APPENDICES. 321 
 
 " E. WAR OFFENSES. 
 
 "Art. 75. — Misbehavior before the enemy. — Any officer or soldier who mis- 
 behaves himself before the enemy, runs away, or shamefully abandons or 
 delivers up any fort, post, camp, guard, or other command which it is his 
 duty to defend, or speaks words inducing others to do the like, or casts away 
 his arms or ammunition, or quits his post or colors to plunder or pillage, or 
 by any means whatsoever occasions false alarms in camp, garrison, or quarters, 
 shall suffer death or such other punishment as a court-martial may direct. 
 
 "Art. 76. Subordinates compelling commander to surrender. — If any com- 
 mander of any garrison, fort, post, camp, guard, or other command is com- 
 pelled, by the officers or soldiers under his command, to give it up to the enemy 
 or to abandon it, the officers or soldiers so offending shall suffer death or such 
 other punishment as a court-martial may direct. 
 
 "Art. 77. Improper use of countersign. — Any person subject to military law 
 who makes known the parole or countersign to any person not entitled to re- 
 ceive it according to the rules and discipline of war, or gives a parole or 
 countersign different from that which he received, shall, if the offense be com- 
 mitted in time of war, suffer death or such other punishment as a court- 
 martial may direct. 
 
 "Art. 78. Forcing a safeguard. — Any person subject to military law who, 
 in time of war, forces a safeguard shall suffer death or such other punishment 
 as a court-martial may direct. 
 
 "Art. 79. Captured property to be secured for public service. — All public 
 property taken from the enemy is the property of the United States and shall 
 be secured for the service of the United States, and any person subject to 
 military law who neglects to secure such property or is guilty of wrongful 
 appropriation thereof shall be punished as a court-martial may direct. 
 
 "Art. 80. Dealing in captured or abandoned property. — Any person subject 
 to military law who buys, sells, trades, or in any way deals in or disposes 
 of captured or abandoned property, whereby he shall receive or expect any 
 profit, benefit, or advantage to himself or to any other person directly or in- 
 directly connected with himself, or who fails whenever such property comes 
 into his possession or custody or within his control to give notice thereof 
 to the proper authority and to turn over such property to the proper authority 
 without delay, shall, on conviction thereof, be punished by fine or imprison- 
 ment, or by such other punishment as a court-martial, military commission, or 
 other military tribunal may adjudge, or by any or all of said penalties. 
 
 "Art. 81. Believing, corresponding with, or aiding the enemy. — Whosoever 
 relieves the enemy with arms, ammunition, supplies, money, or other thing, or 
 knowingly harbors or protects or holds correspondence with or gives intelli- 
 gence to the enemy, either directly or indirectly, shall suffer death, or such 
 other punishment as a court-martial or military commission may direct. 
 
 "Art. 82. Spies. — Any person who in time of war shall be found lurking or 
 acting as a spy in or about any of the fortifications, posts, quarters, or encamp- 
 ments of any of the armies of the United States, or elsewhere, shall be tried 
 by a general court-martial or by a military commission, and shall, on conviction 
 thereof, suffer death. 
 
 "f. miscellaneous crimes and offenses. 
 
 "Art. 83. Military property — Willful or negligent loss, damage, or 
 wrongful disposition. — Any person subject to military law who willfully, or 
 through neglect, suffers to be lost, spoiled, damaged, or wrongfully disposed of, 
 70844°— 16 22 
 
322 MANUAL FOR COURTS-MARTIAL. 
 
 any military property belonging to the United States shall make good the loss 
 or damage and suffer such punishment as a court-martial may direct. 
 
 "Art 84. Waste or unlawful disposition of military property issued to 
 soldiers. — Any soldier who sells or wrongfully disposes of or willfully or 
 through neglect injures or loses any horse, arms, ammunition, accouterments, 
 equipment, clothing, or other property issued for use in the military service, 
 shall be punished as a court-martial may direct. 
 
 "Art. 85. Drunk on duty. — Any officer who is found drunk on duty shall, if 
 the offense be committed in time of war, be dismissed from the service and 
 suffer such other punishment as a court-martial may direct ; and if the offense 
 be committed in time of peace, he shall be punished as a court-martial may 
 direct Any person subject to military law, except an officer, who is found 
 drunk on duty shall be punished as a court-martial may direct. 
 
 "Art. 86. Misbehavior op sentinel. — Any sentinel who is found drunk or 
 sleeping upon his post, or who leaves it before lie is regularly relieved, shall, 
 if the offense be committed in time of war, suffer death or such other punish- 
 ment as a court-martial may direct ; and if the offense be committed in time 
 of peace, he shall suffer any punishment, except death, that a court-martial 
 may direct. 
 
 "Art. 87. Personal interest in sale of provisions. — Any officer command- 
 ing in any garrison, fort, barracks, camp, or other place where troops of the 
 United States may be serving who, for his private advantage, lays any duty 
 or imposition upon or is interested in the sale of any victuals or other neces- 
 saries 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. 
 
 "Art. 88. Intimidation of persons bringing provisions. — Any person subject 
 to military law who abuses, intimidates, does violence to, or wrongfully inter- 
 feres with any person bringing provisions, supplies, or other necessaries to the 
 camp, garrison, or quarters of the forces of the United States shall suffer such 
 punishment as a court-martial may direct. 
 
 "Art. 89. Good order to be maintained and- wrongs redressed. — All persons 
 subject to military law are to behave themselves orderly in quarters, garrison, 
 camp, and on the march; and any person subject to military law who com- 
 mits any waste or spoil, or willfully destroys any property whatsoever (unless 
 by order of his commanding officer), or commits any kind of 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 repara- 
 tion, as provided for in article one hundred and five, shall be dismissed from the 
 service, or otherwise punished, as a court-martial may direct. 
 
 "Art. 90. Provoking speeches or gestures.— No person subject to military 
 law shall use any reproachful or provoking speeches or gestures to another; 
 and any person subject to military law who offends against the provisions of 
 this article shall be punished as a court-martial may direct. 
 
 "Art. 91. Dueling.— Any person subject to military law who fights or pro- 
 motes or is concerned in or connives at fighting a duel, or who having knowl- 
 edge of a challenge sent or about to be sent fails to report the fact promptly to 
 the proper authority shall, if an officer, be dismissed from the service or suffer 
 such other punishment as a court-martial may direct; and if any other person 
 subject to military law, shall suffer such punishment as a court-martial may 
 direct. 
 
 "Art. 92. Murder — Rape. — Any person subject to military law who commits 
 murder or rape shall suffer death or imprisonment for life, as a court-martial 
 
APPENDICES. 323 
 
 may direct; but no person shall be tried by court-martial for murder or rape 
 committed within the geographical limits of the States of the Union and the 
 District of Columbia in time of peace. 
 
 [Note. — This article became effective on August 29, 1916.] 
 
 "Art. 93. Various crimes. — Any person subject to military law who commits 
 manslaughter, mayhem, arson, burglary, robbery, larceny, embezzlement, per- 
 jury, assault with intent to commit any felony, or assault with intent to do 
 bodily harm, shall be punished as a court-martial may direct. 
 
 "Art. 94. Frauds against the Government. — Any person subject to military 
 law who makes or causes to be made any claim against the United States or 
 any officer thereof, knowing such claim to be false or fraudulent ; or 
 
 " Who presents or causes to be presented to any person in the civil or 
 military service thereof, for approval or payment, any claim against the United 
 States, or any officer thereof, knowing such claim to be false or fraudulent ; or 
 
 " Who enters into any agreement or conspiracy to defraud the United 
 States by obtaining, or aiding others to obtain, the allowance or payment of 
 any false or fraudulent claim ; or 
 
 " Who, for the purpose of obtaining, or aiding others to obtain, the approval, 
 allowance, or payment of any claim against the United States or against any 
 officer thereof, makes or uses, or procures, or advises the making or use of, 
 any writing or other paper knowing the same to contain any false or fraudu- 
 lent statements ; or 
 
 " Who, for the purpose of obtaining, or aiding others to obtain, the approval, 
 allowance, or payment of any claim against the United States or any officer 
 thereof, makes, or procures, or advises the making of, any oath to any fact or 
 to any writing or other paper knowing such oath to be false; or 
 
 " Who, for the purpose of obtaining, or aiding others to obtain, the approval, 
 allowance, or payment of any claim against the United States or any officer 
 thereof, forges or counterfeits, or procures, or advises the forging or coun- 
 terfeiting of any signature upon any writing or other paper, or uses, or pro- 
 cures, or advises the use of any such signature, knowing the same to be forged 
 or counterfeited ; or 
 
 " Who, having charge, possession, custody, or control of any money or other 
 property of the United States, furnished or intended for the military service 
 thereof, knowingly delivers, or causes to be delivered, to any person having 
 authority to receive the same, any amount thereof less than that for which he 
 receives a certificate or receipt ; or 
 
 " Who, being authorized to make or deliver any paper certifying the receipt 
 of any property of the United States furnished or intended for the military 
 service thereof, makes or delivers to any person such writing, without having 
 full knowledge of the truth of the statements therein contained and with in- 
 tent to defraud the United States ; or 
 
 "Who steals, embezzles, knowingly and willfully misappropriates, applies to 
 his own use or benefit, or wrongfully or knowingly sells or disposes of any 
 ordnance, arms, equipments, ammunition, clothing, subsistence stores, money, 
 or other property of the United States furnished or intended for the military 
 service thereof; or 
 
 " Who knowingly purchases or receives in pledge for any obligation or in- 
 debtedness from any soldier, officer, or other person who is a part of or 
 employed in said forces or service, any ordnance, arms, equipment, ammuni- 
 tion, clothing, subsistence stores, or other property of the United States, such 
 soldier, officer, or other person not having lawful right to sell or pledge the 
 same; 
 
324 MANUAL FOB C0UBTS-MABT1AL. 
 
 " Shall, on conviction thereof, be punished by fine or imprisonment, or by 
 such other punishment as a court-martial may adjudge, or by any or all of 
 said penalties. And if any person, being guilty of any of the offenses aforesaid 
 while in the military service of the United States, receives his discharge or is 
 dismissed from the service, he shall continue to be liable to be arrested and 
 held for trial and sentence by a court-martial in the same manner and to the 
 same extent as if he had not received such discharge nor been dismissed. 
 
 "Aet. 95. Conduct unbecoming an officer and gentleman. — Any officer or 
 cadet who is convicted of conduct unbecoming an officer and a gentleman shall 
 be dismissed from the service. 
 
 "Art. 96. General article. — Though not mentioned in these articles, all dis- 
 orders and neglects to the prejudice of good order and military discipline, all 
 conduct of a nature to bring discredit upon the military service, and all crimes 
 or offenses not capital, of which persons subject to military law may be guilty, 
 shall be taken cognizance of by a general or special or summary court-martial, 
 according to the nature and degree of the offense, and punished at the dis- 
 cretion of such court. 
 
 " rv. courts of inquiry. 
 
 "Art. 97. When and by whom ordered. — A court of inquiry to examine into 
 the nature of any transaction of or accusation or imputation against any officer 
 or soldier may be ordered by the President or by any commanding officer ; but a 
 court of inquiry shall not be ordered by any commanding officer except upon 
 the request of the officer or soldier whose conduct is to be inquired into. 
 
 "Art. 98. Composition. — A court of inquiry shall consist of three or more 
 officers. For each court of inquiry the authority appointing the court shall 
 appoint a recorder. 
 
 "Art. 99. Challenges. — Members of a court of inquiry may be challenged by 
 the party whose conduct is to be inquired into, but only for cause stated to the 
 court. The court shall determine the relevancy and validity of any challenge, 
 and shall not receive a challenge to more than one member at a time. The 
 party whose conduct is being inquired into shall have the right to be repre- 
 sented before the court by counsel of his own selection, if such counsel be 
 reasonably available. 
 
 "Art. 100. Oath of members and recorders. — The recorder of a court of 
 inquiry shall administer to the members the following oath : ' You, A. B., do 
 swear (or affirm) that you will well and truly examine and inquire, according 
 to the evidence, into the matter now before you, without partiality, favor, 
 affection, prejudice, or hope of reward. So help you God.' After which the 
 president of the court shall administer to the recorder the following oath: 
 ' You, A. B., do swear (or affirm) that you will, according to your best abilities, 
 accurately and impartially record the proceedings of the court and the evidence 
 to be given in the case in hearing. So help you God.' 
 
 " In case of affirmation the closing sentence of adjuration will be omitted. 
 
 "Art. 101. Powers ; procedure. — A court of inquiry and the recorder thereof 
 Bhall have the same power to summon and examine witnesses as is given to 
 courts-martial and the judge advocate thereof. Such witnesses shall take the 
 same oath or affirmation that is taken by witnesses before courts-martial. A re- 
 porter or an interpreter for a court of inquiry shall, before entering upon his 
 duties, take the oath or affirmation required of a reporter or an interpreter for 
 a court-martial. The party whose conduct is being inquired into or his counsel, 
 if any, shall be permitted to examine and cross-examine witnesses so as fully 
 to investigate the circumstances in question. 
 
APPENDICES. 325 
 
 "Art. 102. Opinion on merits of case.— A court of inquiry shall not give an 
 opinion on the merits of the case inquired into unless specially ordered to do so. 
 
 "Abt. 103. Record of proceedings — How authenticated. — Each court of in- 
 quiry shall keep a record of its proceedings, which shall be authenticated by 
 the signature of the president and the recorder thereof, and be forwarded to 
 the convening authority. In case the record can not be authenticated by the 
 recorder, by reason of his death, disability, or absence, it shall be signed by 
 the president and by one other member of the court. 
 
 " V. MISCELLANEOUS PROVISIONS. 
 
 "Art. 104. Disciplinary powers of commanding officers. — Under such regu- 
 lations as the President may prescribe, and which he may from time to time 
 revoke, alter, or add to, the commanding officer of any detachment, company, 
 or higher command may, for minor offenses not denied by the accused, impose 
 disciplinary punishments upon persons of his command without the inter- 
 vention of a court-martial, unless the accused demands trial by court-martial. 
 
 " The disciplinary punishments authorized by this article may include 
 admonition, reprimand, withholding of privileges, extra fatigue, and restriction 
 to certain specified limits, but shall not include forfeiture of pay or confine- 
 ment under guard. A person punished under authority of this article, who 
 deems his punishment unjust or disproportionate to the offense may, through 
 the proper channel, appeal to the next superior authority, but may in the 
 meantime be required to undergo the punishment adjudged. The commanding 
 officer who imposes the punishment, his successor in command, and superior- 
 authority shall have power to mitigate or remit any unexecuted portion of 
 the punishment. The imposition and enforcement of disciplinary punishment 
 under authority of this article for any act or omission shall not be a bar to 
 trial by court-martial for a crime or offense growing out of the same act or 
 omission; but the fact that a disciplinary punishment has been enforced may 
 be shown by the accused upon trial, and when so shown Shall be considered in 
 determining the measure of punishment to be adjudged in the event of a finding 
 of guilty. 
 
 "Art. 105. Injuries to person of property — Eedress _of. — Whenever com- 
 plaint is made to any commanding officer that damage has been done to the 
 property of any person or that his property has been wrongfully taken by per- 
 sons subject to military law, such complaint shall be investigated by a board 
 consisting of any number of officers from one to three, which board shall be 
 convened by the commanding officer and shall have, for the purpose of such 
 investigation, power to summon witnesses and examine them upon oath or 
 affirmation, to receive depositions or other documentary evidence, and to assess 
 the damages sustained against the responsible parties. The assessment of 
 damages made by such board shall be subject to the approval of the command- 
 ing officer, and in the amount approved by him shall be stopped against the pay 
 of the offenders. And the order of such commanding officer directing stoppages 
 herein authorized shall be conclusive on any disbursing officer for the payment 
 by him to the injured parties of the stoppages so ordered. 
 
 " Where the offenders can not be ascertained, but the organization or detach- 
 ment to which they belong is known, stoppages to the amount of damages 
 inflicted may be made and assessed in such proportion as may be deemed just 
 upon the individual members thereof who are shown to have been present with 
 such organization or detachment at the time the damages complained of were 
 inflicted as determined by the approved findings of the board. 
 
326 MANUAL FOR COURTS-MARTIAL. 
 
 "Abt. 106. Abbest or deserters by civil officials. — It shall be lawful for any 
 civil officer having authority under the laws of the United States, or of any 
 State, Territory, District, or possession of the United States, to arrest of- 
 fenders, summarily to arrest a deserter from the military service of the United 
 States and deliver him into the custody of the military authorities of the 
 United States. 
 
 "Abt. 107. Soldiers to make good time lost. — Every soldier who in an exist- 
 ing or subsequent enlistment deserts the service of the United States or without 
 proper authority absents himself from his organization, station, or duty for 
 more than one day, or who is confined for more than one day under sentence, or 
 while awaiting trial and disposition of his case, if the trial results in conviction, 
 or through the intemperate use of drugs or alcoholic liquor, or through dis- 
 ease or injury the result of his own misconduct, renders himself unable for 
 more than one day to perform duty, shall be liable to serve, after his return 
 to a full-duty status, for such period as shall, with the time he may have 
 served prior to such desertion, unauthorized absence, confinement, or inability 
 to perform duty, amount to the full term of that part of his enlistment period 
 which he is required to serve with his organization before being furloughed to 
 the Army reserve. 
 
 "Abt. 108. Soldiers — Separation fbom the service. — No enlisted man, law- 
 fully inducted into the military service of the United States, shall be discharged 
 from said service without a certificate of discharge, signed by a field officer of 
 the regiment or other organization to which the enlisted man belongs or by the 
 commanding officer. when no such field officer is present; and no enlisted man 
 shall be discharged from said service before his term of service has expired, 
 except by order of the President, the Secretary of War, the commanding officer 
 of a department, or by sentence of a general court-martial. 
 
 "Art. 109. Oath of enlistment.— At the time of his enlistment every soldier 
 
 shall take the following oath or affirmation : ' I, , do solemnly swear (or 
 
 affirm) that I will bear true faith and allegiance to the United States of 
 America ; that I will serve them honestly and faithfully against all their enemies 
 whomsoever ; and that I will obey the orders of the President of the United 
 States and the orders of the officers appointed over me, according to the Eules 
 and Articles of War.' This oath or affirmation may be taken before any officer. 
 
 "Art. 110. Certain articles to be bead and explained. — Articles one, two, 
 and twenty-nine, fifty-four to ninety-six, inclusive, and one hundred and four 
 to one hundred and nine, inclusive, shall be read and explained to every soldier 
 at the time of his enlistment or muster in, or within six days thereafter, and 
 shall be read and explained once every six months to the soldiers of every gar- 
 rison, regiment, or company in the service of the United States. 
 
 "Art. 111. Copt of eecoed of trial. — Every person tried by a general court- 
 martial shall, on demand therefor, made by himself or by any person in his 
 behalf, be entitled to a copy of the record of the trial. 
 
 "Art. 112. Effects of deceased persons — Disposition of. — In case of the 
 death of any person subject to military law, the commanding officer of the 
 place or command will permit the legal representative or widow of the de- 
 ceased, if present, to take possession of all his effects then in camp or quarters, 
 and if no legal representative or widow be present, the commanding officer shall 
 direct a summary court to secure all such effects; and said summary court 
 shall have authority to convert such effects into cash, by public or private sale, 
 not earlier than thirty days after the death of the deceased, and to collect and 
 receive any debts due decedent's estate by local debtors ; and as soon as practi- 
 cable after converting such effects into cash said summary court shall deposit 
 
APPENDICES. 327 
 
 with the proper officer, to be designated in regulations, any cash belonging to 
 decedent's estate, and shall transmit a receipt for such deposit, accompanied by 
 any will or other papers of value belonging to the deceased, an inventory of the 
 effects secured by said summary court, and a full account of his transactions to 
 the War Department for transmission to the Auditor for the War Department 
 for action as authorized by law in the settlement of the accounts of deceased 
 officers or enlisted men of the Army ; but if in the meantime the legal repre- 
 sentative, or widow, shall present himself or herself to take possession of 
 decedent's estate, the said summary court shall turn over to him or her all 
 effects not sold and cash belonging to said estate, together with an inventory and 
 account, and make to the War Department a full report of his transactions. 
 
 " The provisions of this article shall be applicable to inmates of the United 
 States Soldiers' Home who die in any United States military hospital outside of 
 the District of Columbia where sent from the home for treatment. 
 
 "Art. 113. Inquests. — When at any post, fort, camp, or other place garrisoned 
 by the military forces of the United States and under the exclusive jurisdiction 
 of the United States, any person shall have been found dead under circumstances 
 which appear to require investigation, the commanding officer will designate 
 and direct a summary court-martial to investigate the circumstances attending 
 the death ; and, for this purpose, such summary court-martial shall have power 
 to summon witnesses and examine them upon oath or affirmation. He shall 
 promptly transmit to the post or other commander a report of his investigation 
 and of his findings as to the cause of the death. 
 
 "Art. 114. AVthority to administer oaths. — Any judge advocate or acting 
 judge advocate, the president of a general or special court-martial, any sum- 
 mary court-martial, the judge advocate or any assistant judge advocate of a 
 general or special court-martial, the president or the recorder of a court of 
 inquiry or of a military board, any officer designated to take a deposition, any 
 officer detailed to conduct an investigation, and the adjutant of any command 
 shall have power to administer oaths for the purposes of the administration of 
 military justice and for other purposes of military administration ; and in for- 
 eign places where the Army may be serving shall have the general powers of a 
 notary public or of a consul of the United States iii the administration of oaths, 
 the execution and acknowledgment of legal instruments, the attestation of docu- 
 ments, and all other forms of notarial acts to be executed by persons subject to 
 military law. 
 
 "Art. 115. Appointment op reporters and interpreters. — Under such regula- 
 tions as the Secretary of War may from time. to time prescribe, the president of 
 a court-martial or military commission, or a court of inquiry shall have power 
 to appoint a reporter, who shall record the proceedings of and testimony taken 
 before such court or commission and may set down the same, in the first in- 
 stance, in shorthand. Under like regulations the president of a court-martial 
 or military commission, or court of inquiry, or a summary court, may appoint an 
 interpreter, who shall interpret for the court or commission. 
 
 "Art. 116. Powers oe assistant judoe advocates. — An assistant judge advo- 
 cate of a general court-martial shall be competent to perform any duty devolved 
 by law, regulation, or the custom of the service upon the judge advocate of the 
 court. 
 
 "Art. 117. Removal of civil suits. — When any civil or criminal prosecu- 
 tion is commenced in any court of a State against any officer, soldier, or other 
 person in the military service of the United States on account of any act done 
 under color of his office or status, or in respect to which he claims any right, 
 title, or authority under any law of the United States respecting the military 
 
328 MANUAL FOR COITRTS-MAKTIAL. 
 
 forces thereof, or under the law of war, such suit or prosecution may at any 
 time before the trial or final hearing thereof be removed for trial into the 
 district court of the United States in the district where the same is pending in 
 the manner prescribed in section thirty-three of the Act entitled 'An Act to 
 codify, revise, and amend the laws relating to the judiciary,' approved March 
 three, nineteen hundred and eleven, and the cause shall thereupon be entered 
 on the docket of said district court and shall proceed therein-as if the cause 
 had been originally commenced in said district court and the same proceedings 
 had been taken in such suit or prosecution in said district court as shall have 
 been had therein in said State court prior to its removal, and said district court 
 shall have full power to hear and determine said cause. 
 
 "Art. 118. Officers, separation from service. — No officer shall be discharged 
 or dismissed from the service except by order of the President or by sentence of 
 a general court-martial ; and in time of peace no officer shall be dismissed except 
 in pursuance of the sentence of a court-martial or in mitigation thereof ; but the 
 President may at any time drop from the rolls of the Army any officer who 
 has been absent from duty three months without leave or who has been absent 
 in confinement in a prison or penitentiary for three months after final conviction 
 by a court of competent jurisdiction. 
 
 "Art. 119. Rank and precedence among Regulars, Militia, and Volun- 
 teers. — That in time of war or public danger, when two or more officers of the 
 same grade are on duty in the same field, department, or command, or of or- 
 ganizations thereof, the President may assign the command of the forces of 
 such field, department, or command, or of any organization thereof, without 
 regard to seniority of rank in the same grade. In the absence of such assign- 
 ment by the President, officers of the same grade shall rank and have precedence 
 in the following order, without regard to date of rank or commission as be- 
 tween officers of different classes, namely : First, officers of the Regular Army 
 and officers of the Marine Corps detached for service with the Army by order of 
 the President ; second, officers of forces drafted or called into the service of the 
 United States ; and, third, officers of the volunteer forces : Provided, That 
 officers of the Regular Army holding commissions in forces drafted or called 
 into the service of the United States or in the volunteer forces shall rank and 
 have precedence under said commissions as if they were commissions in the 
 Regular Army ; the rank of officers of the Regular Army under commissions in 
 the National Guard as such shall not, for the purposes of this article, be held 
 to antedate the acceptance of such officers into the service of the United States 
 under said commissions. 
 
 "Abt. 120. Command when different corps or commands happen to join. — 
 When different corps or commands of the military forces of the United States 
 happen to joint or do duty together the officer highest in rank of the line of the 
 Regular Army, Marine Corps, forces drafted or called into the service of the 
 United States, or Volunteers, there on duty, shall, subject to the provisions of 
 the last preceding article, command the whole and give orders for what is 
 needful in the service, unless otherwise directed by the President. 
 
 "Art. 121. Complaints of wrongs. — Any officer or soldier who believes himself 
 wronged by his commanding officer, and, upon due application to such com- 
 mander, is refused redress, may complain to the general commanding in the 
 locality where the officer against whom the complaint is made is stationed. The 
 general shall examine into said complaint and take proper measures for redress- 
 ing the wrong complained of ; and he shall, as soon as possible, transmit to the 
 Department of War a true statement of such complaint, with the proceedings 
 had thereon." 
 
APPENDICES. 329 
 
 Sec. 4. The provisions of section three of this Act shall take effect and he in 
 force on and after the first day of March, nineteen hundred and seventeen: 
 Provided, That articles four, thirteen, fourteen, fifteen, twenty-nine, forty- 
 seven, forty-nine, and ninety-two shall take effect immediately upon the ap- 
 proval of this Act. 
 
 Sec. 5. That all offenses committed and all penalties, forfeitures, fines, or lia- 
 bilities incurred prior to the taking effect of this Act, under any law embraced 
 in or modified, changed, or repealed by this Act, may be prosecuted, punished, 
 and enforced in the same manner and with the same effect as if this Act had 
 not been passed. 
 
 Sec. 6. All laws and parts of laws in so far as they are inconsistent with this 
 Act are hereby repealed. 
 
 Act of August 29, 1916 (39 Stat., 650-670). 
 
APPENDIX 2. 
 
 SYSTEM OF COURTS-MARTIAL FOR NATIONAL GUARD 
 NOT IN THE SERVICE OF THE UNITED STATES. 
 
 Sec. 102. Except in organizations in the service of the United States, courts- 
 martial in the National, Guard shall be of three kinds, namely, general courts- 
 martial, special courts-martial, and summary courts-martial. They shall be 
 constituted like, and have cognizance of the same subjects, and possess like 
 powers, except as to punishments, as similar courts provided for by the laws 
 and regulations governing the Army of the United States, and the proceedings 
 of courts-martial of the National Guard shall follow the forms and modes of 
 procedure prescribed for said similar courts. 
 
 'Sec. 103. General courts-martial of the National Guard not in the service of 
 the United States may be convened by orders of the President, or of the gov- 
 ernors of the respective States and Territories, or by the commanding general 
 of the National Guard of the District of Columbia, and such courts shall have 
 the power to impose fines not exceeding $200 ; to sentence to forfeiture of pay 
 and allowances ; to a reprimand ; to dismissal or dishonorable discharge from 
 the service; to reduction of noncommissioned officers to the ranks; or any 
 two or more of such punishments may be combined in the sentences imposed 
 by such courts. 
 
 Sec. 104. In the National Guard, not in the service of the United States, the 
 commanding officer of each garrison, fort, post, camp, or other place, brigade, 
 regiment, detached battalion, or other detached command, may appoint special 
 courts-martial for his command ; but such special courts-martial may in any 
 case be appointed by superior authority when by the latter deemed desirable. 
 Special courts-martial shall have power to try any person subject to military 
 law, except a commissioned officer, for any crime or offense made punishable by 
 the military laws of the United Slates, and such special courts-martial shall 
 have the same powers of punishment as do general courts-martial, except that 
 fines imposed by such courts shall not exceed $100. 
 
 Sec. 105. In the National Guard, not in the service of the United States, the 
 commanding officer of each garrison, fort, post, or other place, regiment or 
 corps, detached battalion, company, or other detachment of the National Guard 
 may appoint for such place or command a summary court to consist of one 
 officer, who shall have power to administer oaths and to try the enlisted men 
 of such place or command for breaches of discipline and violations of laws gov- 
 erning such organizations ; and said court, when satisfied of the guilt of such 
 soldier, may impose fines not exceeding $25 for any single offense ; may sentence 
 noncommissioned officers to reduction to the ranks ; may sentence to forfeiture 
 of pay and allowances. The proceedings of such court shall be informal, and 
 the minutes thereof shall be the same as prescribed for summary courts of the 
 Army of the United States. 
 
 ■ Sec. 106. All courts-martial of the National Guard, not in the service of the 
 United States, including summary courts, shall have power to sentence to con- 
 
 331 
 
332 MANUAL FOE COURTS-MARTIAL. 
 
 flnement in lieu of fines authorized to be imposed: Provided, That such sen- 
 tences of confinement shall not exceed one day for each dollar of fine authorized. 
 
 Sec. 107. No sentence of dismissal from the service or dishonorable discharge, 
 imposed by a National Guard court-martial, not in the service of _the United 
 States, shall be executed until approved by the governor of the State or Terri- 
 tory concerned, or by the commanding general of the National Guard of the 
 District of Columbia. 
 
 Sec. 108. In the National Guard, not in the service of the United States, 
 presidents of courts-martial and summary court officers shall have power to 
 issue warrants to arrest accused persons and to bring them before the court 
 for trial whenever such persons shall have disobeyed an order in writing from 
 the convening authority to appear before such court, a copy of the charge or 
 charges having been delivered to the accused with such order, and to issue 
 subpoenas and subposnas duces tecum and to enforce by attachment attendance 
 of witnesses and the production of books and papers, and to sentence for a 
 refusal to be sworn or to answer as provided in actions before civil courts. 
 
 All processes and sentences of said courts shall be executed by such civil 
 officers as may be prescribed by the laws of the several States and Terri- 
 tories, and in any State where no provision shall have been made for such 
 action, and in the Territories and the District of Columbia, such processes and 
 sentences shall be executed by a United States marshal or his duly appointed 
 deputy, and it shall be the duty of any United States marshal to execute all 
 such processes and sentences and make return thereof to the officer issuing or 
 imposing the same. (Act of June 3, 1916, 39 Stat, 208, 209.) 
 
APPENDIX 3. 
 
 [front.] 
 Charge sheet. No. in summary court record ■ 
 
 (Place.) (Date.) 
 
 (Surname.) (Christian name.) (Bank and organization.) 
 
 Date current enlistment, . Rate of pay, - 
 
 Previous service, 
 
 (Give dates, with character given on each discharge.) 
 J Arrest: . No. of previous convictions, — 
 
 Date of ■! _, . ' 
 
 | Confinement: 
 
 Witnesses: 
 
 Charge — : Violation of the article of war. 
 
 Specification — : In that, etc. 
 
 Form No. 594, A. G. O. 
 
 [back.] 
 
 Pleas: . „ . I Arrest: . 
 
 Findings: . | Confinement: . 
 
 Sentence: . 
 
 Maximum punishment: . 
 
 Note. — The above spaces are intended only for use for record purposes at the 
 headquarters of the officer appointing the special or general court-martial, and 
 it is not intended that they shall be filled in by summary courts, trial judge advo- 
 cates, etc. 
 
 INSTRUCTIONS. 
 
 (M. C. M., pars. 75, 76, 79, 306.) 
 
 1. Submission of charges. — All charges for trial by court-martial will be pre- 
 pared in triplicate, using the prescribed charge sheet as a first sheet and using 
 such additional sheets of ordinary paper as are required. They will be accom- 
 panied — 
 
 (a) Except when trial is to be had by summary court, by a brief statement 
 of the substance of all material testimony expected from each material witness, 
 both those for the prosecution and those for the defense, together with all 
 available and necessary information as to any other actual or probable testi- 
 mony or evidence in the case ; and 
 
 (6) In the case of a soldier, by properly authenticated evidence of con- 
 victions, if any, of an offense or offenses committed by him during his current 
 enlistment and within one year next preceding the date of the alleged com- 
 mission by him of any offense set forth in the charges. 
 
 They will be forwarded by the officer preferring them to the officer imme- 
 diately exercising summary court-martial jurisdiction over the command to 
 
 333 
 
334 MANUAL FOB COURTS-MARTIAL. 
 
 which the accused belongs, and will by him and by each superior commander 
 into whose hands they may come either be referred to a court-martial within 
 his jurisdiction for trial, forwarded to the next superior authority exercising 
 court-martial jurisdiction over the command to which the accused belongs or 
 pertains, or. otherwise disposed of as circumstances may appear to require. 
 
 2. Investigation of charges. — If the officer immediately exercising summary 
 court-martial jurisdiction over the command to which the accused belongs or 
 pertains decides to forward the charges to superior authority, he will, before 
 so doing, either carefully investigate them himself or will cause an officer other 
 than the officer preferring the charges carefully to investigate them and to 
 report to him, orally or otherwise, the result of such investigation. The officer 
 investigating the charges will afford to the accused an opportunity to make 
 any statement, offer any evidence, or present any matter in extenuation that he 
 may desire to have considered in connection with the accusations against him. 
 If the accused desires to submit nothing, the indorsement will so state. In 
 his indorsement forwarding the charges to superior authority he will include: 
 
 (a) -The name of the officer who investigated the charges; 
 
 (6) The opinion of both such officer and himself as to whether the several 
 charges can be sustained ; 
 
 (c) The substance of such material statement, if any, as the accused may 
 have voluntarily made in connection with the case during the investigation 
 thereof ; 
 
 (d) A summary of the extenuating circumstances, if any, connected with 
 the case; and 
 
 (e) His recommendation of action to be taken. 
 
 3. Disposition of copies of charges. — (a) When trial is had by summary 
 court the charges will be completed as the record of trial, a copy thereof 
 will be completed as a copy of the summary court record for the company or 
 other commander, and the other copy will, with the least practicable delay 
 after action has been taken on the sentence, be completed and transmitted 
 as the required report of trial to the officer exercising general court-martial 
 Jurisdiction over the command, there to be filed in the office of the judge 
 advocate for a period of two years, at the end of which time it may be 
 destroyed ; and 
 
 (b) When trial is to be had by special or general court-martial the charges 
 and one copy thereof will be referred to the trial judge advocate, the copy 
 to be furnished by him to the accused or his counsel, and the other copy" 
 will be used for record purposes in the office of the officer appointing the trial 
 court, the top fold of the copy of the charge sheet, in case of trial by general 
 court-martial, being detached at the proper time and forwarded with the record 
 of trial to the Judge Advocate General of the Army. 
 
 4. Disposition of evidence of previous convictions. — (a) The evidence of a 
 previous conviction referred to a summary court or to the judge advocate of a 
 special court will, after trial, be returned by him to the appointing authority 
 and will, after action by the latter on the case, be returned to the company 
 or detachment to which it pertains ; 
 
 (6)' The evidence of a previous conviction referred to the judge advocate 
 of a general court-martial will, if a company record, after trial be returned 
 by him direct to the company or detachment to which it pertains, and a cer- 
 tified copy thereof will be attached to the record of trial. 
 
 Note. — This form supersedes the blank form for record of trial by summary 
 court (Form No. 99, A. G. O.), the blank form for report of trial by summary 
 court (Form No. 59, A. G. O.), and the blank form for statement of service 
 (Form No. 15, A. G. O.). 
 
APPENDIX 4. 
 
 FORMS FOR CHARGES AND SPECIFICATIONS. 
 
 INSTRUCTIONS. 
 
 The forms for charges and specifications set forth below constitute a general 
 guide for use in the drafting of charges and specifications under the several 
 articles of war, not only for offenses specifically provided for in the forms but 
 also for like offenses not specifically mentioned therein. In preparing charges 
 the following general rules should be observed: 
 
 (a) When there is more than one charge the charges will be numbered, using 
 the Roman numerals, viz, I, II, etc. 
 
 (6) When there is more than one specification under a charge the specifica- 
 tions under that charge will be numbered, using the Arabic numerals, viz, 
 1, 2, etc. 
 
 (e) The form provided for the charge will not in any ease be abbreviated, 
 added to, or deviated from. • 
 
 (d) The several forms provided for specifications will be added to or devi- 
 ated from when circumstances require such addition or deviation, and in charg- 
 ing minor offenses with a view to trial by summary court they may in proper 
 cases be abbreviated. 
 
 (e) The words inclosed in parentheses or brackets, or both, in the forms for 
 specifications may or may not be used, as circumstances require. 
 
 (/) The blanks inclosed in parentheses in the forms for specifications indi- 
 cate that a proper substitute may be used. 
 
 {g) The name of the accused as entered in the specification should, except 
 in a case in which the jurisdiction of the court over the person is not dependent 
 upon his being a. person subject to military law (e. g. see A. W., 81 and 82), be 
 accompanied by such descriptive language as will show that he is a person 
 subject to military law and therefore subject to the jurisdiction of the court, 
 
 as " Pvt. John Doe, Company . Infantry " ; " Pvt. John Doe, 
 
 United States Marine Corps, detached for service with the Army, by 
 
 order of the President " ; " John Doe, a retainer to the camp " ; " John Doe, a 
 person accompanying the Army of the United States without the territorial 
 jurisdiction of the United States " ; " John Doe, a person serving with the Army 
 of the United States in the field " ; " John Doe, a general prisoner " ; " John Doe, 
 a person under a sentence adjudged by a court-martial." 
 
 (7i) The place and date of the commission of the alleged offense will ordi- 
 narily be stated in the body of the specification and not in a separate line at the 
 end thereof. 
 
 (i) The words " officer preferring charge," or words of similar import, will 
 not be used in connection with the signature of the officer who subscribes the 
 charges. 
 
 SPECIMEN CHARGES. 
 
 {To be placed on charge sheet, Appendix 3.] 
 
 CHARGE I: Violation of the 54th Article of War. 
 
 Specification: In that Pvt. Richard Roe, Company A, Second Infantry, alias 
 Pvt. John Doe, Company P, Twenty-ninth Infantry, did, without a discharge 
 from said Company A, Second Infantry, procure himself to be enlisted in tbc 
 
 335 
 
336 MANUAL FOR COXJETS-MAETIAL. 
 
 military service of the United States at Fort Jay, N. Y., on the 24th day of 
 July, 1917, under the name of John Doe, by willfully concealing from Capt. 
 William White, Medical Corps, a recruiting officer, the fact of his prior enlist- 
 ment in said Company A, Second Infantry, and has at Fort Jay, N. Y., since 
 said date, received allowances under said enlistment. 
 
 CHARGE II: Violation of the 58th Article of War. 
 
 Specification: In that Pvt. Richard Roe, Company A, Second Infantry, alias 
 Pvt John Doe, Company F, Twenty-ninth Infantry, did, at Fort Jay, N. Y., on 
 or about the 6th day of March, 1917, desert the service of the United States, and 
 did remain absent in desertion until he was apprehended at Fort Jay, N. Y., on 
 or about July 24, 1917. 
 
 CHARGE III: Violation of the 96th Article of War. 
 
 Specification 1: In that Pvt. Richard Roe, Company A, Second Infantry, alias 
 Pvt John Doe, Company F, Twenty-ninth Infantry, did, at Fort Jay, N. Y., on 
 or about March 6, 1917, strike in the face with his fist Pvt. John W. Davis, 
 Third Company, Fort Hamilton, then a sentinel in the execution of his duty. 
 
 Specification 2: In that Pvt. Richard Roe, Company A, Second Infantry, alias 
 Pvt. John Doe, Company F, Twenty-ninth Infantry, having at Fort Jay, N. Y., 
 on or about the 6th day of March, 1917, received a lawful order to halt from 
 Pvt. John W. Davis, Third Company, Fort Hamilton, then a sentinel in the 
 execution of his duty, did willfully disobey the same. 
 
 John Jones, 
 
 Captain, C. A. C. 
 FORMS. 
 
 [See instructions on p. 335.] 
 
 CHARGE: Violation of the 54th Article of War. 
 
 1. Specification: In that Pvt. , Company , Infantry, alias 
 
 Pvt. . Company , Infantry, . did, without a discharge from 
 
 said Infantry, procure himself to be enlisted in the military service of 
 
 the United States, at , on the day of , 19 — , under the name 
 
 of . (by willfully and falsely representing to , a recruiting officer, 
 
 that he had never been enlisted in the service of the United States and) by 
 
 willfully concealing from ( , a) (said) recruiting officer (,) the fact of 
 
 his prior enlistment in said Infantry; and has, at and since 
 
 said date, received (pay) (allowances) (pay and allowances) under said 
 enlistment. 
 
 2. Specification: In that did procure himself to be enlisted in the mili- 
 tary service of the United States, at , on the day of , 19 — , 
 
 (by willfully and falsely representing to , a recruiting officer, that he had 
 
 never been discharged from the service of the United States and) by willfully 
 
 concealing from ( , a) (said) recruiting officer the fact that (, under the 
 
 name of ,) he had been discharged [(dishonorably from , on 
 
 , pursuant to sentence of court-martial) (from , on , by 
 
 reason of ) ] [convicted of a felony, to wit, — ] [ ] ; and has, at 
 
 and since said enlistment, received (pay) (allowances) (pay and allow- 
 ances) thereunder. 
 
 3. Specification: In that did procure himself to be enlisted in the 
 
 military service of the United States, at , on the day of , 
 
 19 — , [by willfully and falsely representing to , a recruiting officer, that 
 
 he had never been imprisoned in any (jail) (reformatory) (penitentiary) 
 
 and] by willfully concealing from ( , a) (said) recruiting officer (,) the 
 
 fact that (, under the name of ,) he had been imprisoned in a (reform- 
 atory) (jail) (penitentiary) under a sentence of a civil court; and has, at 
 
APPENDICES. 337 
 
 and since said enlistment, received (pay) (allowances) (pay and allow- 
 ances) thereunder. 
 
 4. Specification: In that did procure himself to be enlisted in the 
 
 military service of the United States, at , on the day of , 
 
 19 — , (by willfully and falsely representing to , a recruiting officer, that 
 
 he was years of age and) by willfully concealing from ( , a) 
 
 (said) recruiting officer (,) the fact that he was then (under the age of 
 
 eighteen years) (a married man) ( ) ; and has, at and since said 
 
 enlistment, received (pay) (allowances) (pay and allowances) thereunder. 
 
 CHARGE:- Violation of the 55th Article of War. 
 
 5. Specification: In that did at , on . unlawfully (enlist) 
 
 (muster) into the military service of the United States one , who, 
 
 as he, the said , then well knew, was (a) (an) (insane) (intoxicated) 
 
 ( ) person (who had been convicted of a felony) (under the age of 16 
 
 years) ( ). 
 
 CHARGE: Violation of the 56th Article of War. 
 
 6. Specification: In that did, at . on the day of , 
 
 19 — , (sign) (allow to sign) (direct to sign) the muster roll of 
 
 — , for the period to , 19 — , he, the said , then well 
 
 knowing that the said muster roll contained the name of ■ — as soldier and 
 
 a member of said company and as present for duty therewith, and that the 
 
 said. was (not a soldier) (not a member of said company) (not present 
 
 for duty) but (a civilian) (a member of company ) (wholly absent from 
 
 military duty). 
 
 7. Specification: In that did, at . on the day of , 
 
 19 — , (sign) (allow to sign) (direct to sign) the muster roll 
 
 of , for the period to , 19 — , he, the said , then well 
 
 knowing that said muster roll contained a statement that , a private of 
 
 said , was present and mustered, and that said statement was false in 
 
 that said was then absent without leave. 
 
 8. Specification: In that did, at , on the day of • , 
 
 19 — , falsely muster as (present) ( ) , when he well knew that 
 
 said was not (present) ( ), but (absent with leave) ( ). 
 
 9. Specification: In that did, at , on the day of , 
 
 19 — , falsely muster as a of Company — , th Infantry, one 
 
 , who, as he, the said , then well knew, was not a soldier, but (a 
 
 civilian) ( ). 
 
 10. Specification: In that did, at , on the day of , 
 
 ■ 19 — , sign the muster roll of , for the period to , 19 — . know- 
 ing at the time that said muster roll contained a statement that was 
 
 (present) ( ), and knowing at the time that said was not (pres- 
 ent) ( ), but (absent with leave) ( ). 
 
 11. Specification: In that did, at , on or about the day 
 
 of , 19 — , wrongfully take from (the sum of $ ). ( ), 
 
 as a consideration to him , for knowingly permitting the muster-in roll 
 
 of on the mustering in of that to falsely show as (mus- 
 tered in) ( ), , who, as he, the said , then well knew, was 
 
 (were) not (mustered in) ( ). 
 
 12. Specification: In that did, at , on or about the — day 
 
 of , 19 — . wrongfully take from the sum of $ , as a consid- 
 eration to him , for allowing the muster roll of , for the period 
 
 of to , 19 — , to show as (present and mustered) ( ), 
 
 when, as he, the said . then well knew, he (they) was (were) not present 
 
 and mustered as shown on said muster roll. 
 
 7084-1°— 16 23 
 
338 MANUAL FOR COURTS-MARTIAL. 
 
 CHARGE: Violation of the 57th Article of War. 
 
 13. Specification: In that , being in command of , and it being his 
 
 duty to render to the a return of the state of (the troops under his com- 
 mand) (the thereto belonging) for the period to , did, at 
 
 . on the day of , 19 — , make a return of for said 
 
 period, which he then knew to be false in that it showed as (absent with 
 
 leave) ( ), whereas the said was, as he, the said . then well 
 
 knew, (absent without leave) ( ). 
 
 14. Specification: In that , being in command of — -, and it being 
 
 his duty to render to the a return of the state of (the troops under his 
 
 command) (the thereto belonging) for the period to , did 
 
 (on and after the day of , 19—) (from until ), 
 
 through (neglect) (design), omit to render such return. 
 
 CHARGE: Violation of the 58th Article of War. 
 
 15. Specification: In that did, at , on or about the day 
 
 of , 19 — , attempt to desert the service of the United States by seeking 
 
 passage to on the steamship . 
 
 16. Specification: In that did, at , on or about the day of 
 
 , 19 — , in the (execution of a conspiracy to desert the service of the United 
 
 States previously entered into with and ) (presence of , 
 
 which the forces of which he was a member were then opposing) attempt to 
 desert the service of the United States. 
 
 17. Specification: In that did, at , on or about the day of 
 
 , 19 — , desert the service of the United States, and did remain absent in 
 
 desertion until he (was apprehended) (surrendered himself) at on or 
 
 about the day of , 19 — . 
 
 18. Specification: In that • did, at — on or about the day of 
 
 , 19 — . in the (execution of a conspiracy to desert the service of the 
 
 United States previously entered into with and ) (presence of 
 
 , which the forces of which the accused was a member were then oppos- 
 ing) , desert the service of the United States and did remain absent in desertion 
 
 until he (was apprehended) (surrendered himself) at on or about the 
 
 day of , 19 — . 
 
 19. Specification: In that and did, at . on or about the 
 
 day of , 19 — , acting jointly, in pursuance of a common intent and 
 
 iu the execution of a conspiracy to desert the service of the United States previ- 
 ously entered into by them (and in the presence of . which the forces of 
 
 which they were members were then opposing), desert the service of the United 
 States and did remain absent in desertion until they (were apprehended) (sur- 
 rendered themselves) at on or about the day of , 19 — . 
 
 CHARGE: Violation of the 59th Article of War. 
 
 20. Specification: In that — ■ • did, at , on or about the day 
 
 of , 19 — , (advise) (persuade) to desert the service of the United 
 
 States by (saying to him , or words to that 
 
 effect) (offering him a position as at ). 
 
 21. Specification: In that did, at , on or about the day 
 
 of , 19 — , knowingly assist to desert the service of the United 
 
 States (by supplying him with a railroad ticket from to ) 
 
 ( ), he, the said . then well knowing that the said intended 
 
 to use the (railroad ticket) ( ) so supplied him in furtherance of his 
 
 plans to desert. 
 
APPENDICES. 339 
 
 CHARGE: Violation of the 60th Article of War. 
 
 22. Specification: In that , having discovered that , a soldier 
 
 in his command, was a deserter from the (military service) (naval service) 
 
 (Marine Corps) did, at , from about the day of , to about 
 
 the day of . 19 — , retain said deserter in his command without 
 
 informing superior - authority or the commander of the organization to which 
 the deserter belonged of the presence of said deserter in his command. 
 
 CHARGE: Violation of the 61st Article of War. 
 
 23. Specification: In- that , did, at , without proper leave, absent 
 
 himself from his from about , 19 — , to about , 19 — . 
 
 24. Specification: In that did, at , on or about the day 
 
 of , 19 — , fail to repair at the fixed time to the properly appointed place 
 
 (of assembly) for . 
 
 25. Specification: In that did, at , on or about the day 
 
 of , 19 — , without proper leave, go from the properly appointed place 
 
 (of assembly) for , after having repaired thereto for the performance of 
 
 said duty. 
 
 CHARGE: Violation of the 62d Article of War. 
 
 26. Specification: In that did, at . on or about the day 
 
 of , 19 — , use (orally and publicly) ( ) the following (contemptu- 
 ous) (disrespectful) (contemptuous and disrespectful) words against the 
 
 of the (United States) ( in which he was then quartered) , to wit : 
 
 ■ , or words to that effect. 
 
 CHARGE: Violation of the 63d Article of War. 
 
 27. Specification: in that did, at , on or about the day 
 
 of , 19 — , behave himself with disrespect toward , his superior 
 
 officer, by (saying to him , or words to that 
 
 effect) (contemptuously turning from and leaving him while he was talking 
 to him the said ) ( — ) . 
 
 CHARGE: Violation of the 64th Article of War. 
 
 28. Specification: In that , having received a lawful command from 
 
 , his superior officer, to , did at . on or about the ■ 
 
 day of , 19 — , willfully disobey the same. 
 
 29. Specification: In that did, at , on or about the 
 
 day f 1 19 — , willfully (draw) (lift up) a against , his 
 
 superior officer, who was then in the execution of his office. 
 
 30. Specification: In that did, at , on or about the day 
 
 f ( 19 — , willfully strike , his superior officer, who was then in the 
 
 execution of his office, (in) (on) the , with (a) (his) . 
 
 [Note. — For assaults upon officers amounting to felonies see A. W. 93.] 
 
 CHARGE: Violation of the 65th Article of War. 
 
 31. Specification: In that — , having received a lawful order from , 
 
 who was then in the execution of his office, to , did at , on or 
 
 about the day of , 19—, willfully disobey the same. 
 
 32. Specification: In that did, at , on or about the day 
 
 of . 19—, (attempt) (threaten) to (strike) ( ) ■ [(in) (on) 
 
 the ] with (a) (his) , while said was in the execution of 
 
 his office. 
 
 33. Specification: In that did, at , on or about the day 
 
 of , 19—, behave in an (insubordinate) (disrespectful) (insubordinate 
 
 and disrespectful) manner toward , who was then in the execution of 
 
 his office, by (saying to him , or words to that effect) ( -). 
 
340 MANUAL FOE COURTS-MARTIAL. 
 
 34. Specification: In that did, at •, on or about the day 
 
 of , 19 — , willfully (strike) (assault) , who was then in the execu- 
 tion of his office, by — him (in) (on) the with (a) (his) . 
 
 [Note. — For assaults upon noncommissioned officers amounting to felonies 
 see A. W. 93.] 
 
 CHARGE: Violation of the 66th Article of War. 
 
 35. Specification: In that did, at , on or about the day 
 
 of , 19 — , attempt to create a mutiny in by urging the members of 
 
 said to refuse to obey the order of ,. their (commanding) 
 
 (superior) officer, to . 
 
 36. Specification: In that did, at , on or about the day 
 
 of . 19 — , cause a mutiny in by unlawfully assuming control 
 
 over about soldiers of said command, and in the execution of such 
 
 control causing said soldiers to disregard and defy the lawful orders of 
 • , their (commanding) (superior) officer, to (assemble for drill) ( ). 
 
 37. Specification: In that did, at , or on about the day 
 
 of , 19 — , voluntarily join in a mutiny which had been begun in 
 
 against the authority of , the commanding officer thereof, and did, in 
 
 combination with sundry other members of said ■ assembled on the 
 
 (parade ground) ( ), refuse to (disperse) (do any further duty) (as- 
 semble for drill) ( ). 
 
 CHARGE: Violation of the 67th Article of War. 
 
 38. Specification: In that , being at and knowing on the 
 
 day of , 19 — , that certain members of proposed and intended to 
 
 begin and join in a mutiny against the commanding officer of that , at 
 
 o'clock (a.) (p.) m. on the, following day, did fail (wholly) to give 
 
 information of said intended mutiny to his commanding officer (until the hour 
 of on the — • day of , 19 — ). 
 
 39. Specification: In that did, at , on or about the day 
 
 of , 19 — , join with other members of the and sundry citizens 
 
 in an attempt to break into a jail and release a prisoner, did assault and beat 
 the police officers and other civil authorities, and did commit other disorders 
 
 until overpowered and restrained by a detachment of sent from the 
 
 post of and compelled to return to his quarters. 
 
 40. Specification: In that , being present at a mutiny among the sol- 
 diers of against the authority of . the commanding officer thereof, 
 
 did fail to use his utmost endeavor to suppress the same, in that, having com- 
 manded the men of his own company to return to their quarters, he took no 
 means to compel their obedience or reduce them to discipline upon their refusal 
 to obey said command. 
 
 CHARGE: Violation of the 68th Article of War. 
 
 41. Specification: In that , being engaged in a (quarrel) (fray) (dis- 
 order) and having been ordered into (arrest) (confinement) by , did, 
 
 at , on or about the day of , 19 — , [(refuse to obey) (draw 
 
 a upon) the said ] [threaten the said ■ by (saying to him 
 
 ■ . or words to that effect) ( )]. 
 
 CHARGE: Violation of the 69th Article of War. 
 
 42. Specification: In that , having been placed in (arrest) (confine- 
 ment) by his (commanding officer) ( ) on account of being charged with 
 
 a (crime) (offense), did at . on or about the day of , 19—, 
 
 (break his arrest) (escape from said confinement) before he was set at libei ,y 
 by proper authority. 
 
APPENDICES. 341 
 
 CHARGE: Violation of the 71st Article of War. 
 
 43. Specification: In that . being on duty as at on or 
 
 about the day of , 19 — , did refuse to (receive) (keep) one , 
 
 a prisoner duly committed to his charge by , who, at the time of com- 
 mitting said prisoner, delivered to the said an account in writing, signed 
 
 by himself, of the (crime) (offense) charged against said prisoner. 
 
 CHARGE: Violation of the 72d Article of War. 
 
 44. Specification: In that , (having been) (being) on duty as com- 
 mander of the guard at , did, on or about the day of — , 19 — , 
 
 fail to report in writing to the commanding officer of that (as soon as 
 
 relieved from his guard) (within 24 hours after the confinement of said 
 
 prisoner) the name of . a prisoner committed to his charge, the. offense 
 
 charged against him, and the name of the officer committing him. 
 
 CHARGE: Violation of the 73d Article of War. 
 
 45. Specification: In that did, at , on or about the day 
 
 of , 19 — , [without proper authority release] [through (design) (neglect) 
 
 (suffer)] , a prisoner duly committed to his charge to escape. 
 
 CHARGE: Violation of the 74th Article of War. 
 
 46. Specification: In that — . being at the time the commanding officer 
 
 at , and an application having been duly made to him by the — of 
 
 for the (delivery) (apprehension and securing) of , a (soldier) 
 
 (officer) under his command, who was accused Of a (crime) (offense) com- 
 mitted against the laws of , did, at , on the day of — ■■ — , 
 
 19 — , refuse to (deliver said to said of ) (aid the said 
 
 of in apprehending and securing the said ). 
 
 CHARGE: Violation of the 75th Article of War. 
 
 47. Specification: In that did, at , on or about the day 
 
 of , 19—, in disregard of his duty and shamefully (abandon) (deliver up 
 
 to the enemy) , which (it was his duty) (he had been ordered by , 
 
 his proper superior officer), to defend. 
 
 48. Specification; In that . while on duty before the enemy, did at 
 
 , on the day of . 19 — . cast away his (rifle) (ammunition) 
 
 ( )• 
 
 49. Specification ; In that , being (present with) (in command of) his 
 
 while it was engaged with the enemy, did at . on or about the 
 
 day of , 19 — , abandon the said and (seek safety in the 
 
 rear) ( ), and did fail to rejoin it until (the engagement was concluded) 
 
 ( )• 
 
 50. Specification: In that did, while on duty before the enemy, cause 
 
 a false alarm in the (camp) (garrison) (quarters) ( ) at , on or 
 
 about the day of , 19 — . by needlessly and without authority caus- 
 ing the call to arms to be sounded. 
 
 51. Specification; In that did, while on duty before the enemy, quit 
 
 his (company) (post) ( ), at , on the day of , 19 — , for 
 
 the purpose of (pillaging) (plundering) (pillaging and plundering), and did com- 
 mit plunder and pillage on the property of one , a- citizen, by forcibly en- 
 tering the house of said , against his will, and taking therefrom and appro- 
 priating money and effects of the said of the value of $ . 
 
 52. Specification; In that did, at , on or about the day 
 
 of , 19 — , run away from his (company) ( ), which was then en- 
 
342 MANUAL FOR COUKTS-MAKTIAL. 
 
 gaged with the enemy, and did not return thereto until (after the engagement 
 had been concluded) ( — ). 
 
 53. Specification: In that . being an (officer) (soldier) of a force 
 
 charged with the duty of defending against an enemy then before it, 
 
 did at , on or about the day of , 19 — , (induce) (seek to 
 
 induce) (soldiers) (soldiers and officers) of that force to shamefully (abandon) 
 
 (deliver up) to the enemy that , which it was their duty to defend, by 
 
 saying to said (soldiers) (soldiers and officers) , or words to that effect. 
 
 54. Specification: In that did, at — — — , on or about the day 
 
 of — , 19 — , say to , who was then, with his company, engaged with 
 
 the enemy, . or words to that effect, thereby (inducing) (seeking to 
 
 induce) said to [(run away from) (shamefully abandon) his (post)] 
 
 ( )• 
 
 55. Specification: In that — did, at . on or about the day 
 
 of , 19 — , say to , who was then on outpost duty before the enemy, 
 
 , or words to that effect, thereby (inducing) (seeking to induce) the 
 
 said to [run away from) (abandon) his (post)] ( ). 
 
 CHARGE: Violation of the 76th Article of War. 
 
 56. Specification: In that , being an (officer) (soldier) under the com- 
 mand of , commanding the (fort) (post) (camp) (guard) ( ) of 
 
 , which was then threatened by the enemy, did, at , on or about 
 
 the day of . 19 — . in combination with other (officers) (soldiers) 
 
 (officers and soldiers) of said command, by compel said to (sur- 
 render) (abandon) said (fort) (post) (camp) (guard) ( ) of to 
 
 the enemy. 
 
 57. Specification: In that . . and , being (officers) (sol- 
 diers) (officers and soldiers) under the command of . who was then 
 
 commanding the (fort) (post) (camp) (guard) ( ) of . which was 
 
 then threatened by the enemy, did. at , on or about the day of 
 
 — •. 19 — , acting jointly and in concert, refuse to perform further duty in 
 
 defense of said (fort) (post) (camp) (guard) ( ) of' , and thereby 
 
 compel the said to (abandon it) (give it up) to the enemy. 
 
 CHARGE: Violation of the 77th Article of War. 
 
 58. Specification: In that , having received as the proper (countersign) 
 
 (parole) the word , did at , on or about the day of , 
 
 19 — , give to , a person to whom he knew it was his duty to give the 
 
 proper (countersign) (parole), the different word as the proper (counter- 
 sign) (parole). 
 
 59. Specification: In that did, at , on or about the day of 
 
 , 19 — , make known the (countersign) (parole), to wit, — , to , 
 
 known by him, . to be a person not entitled to receive it. 
 
 CHARGE: Violation of the 78th Article of War. 
 
 60. Specification: In that did, at , on or about the day of 
 
 ■ , 19 — , violate a safeguard, known by him to have been placed over the 
 
 premises occupied by , at , by (overwhelming the guard posted for 
 
 the protection of the same and violently entering said premises and' committing 
 waste and plunder therein) ( ). 
 
 CHARGE: Violation of the 79th Article of War. 
 
 61. Specification: In that did, at , on or about the day of 
 
 , 19 — , wrongfully appropriate to (his own use) ( ) the following 
 
APPENDICES. 343 
 
 public property taken from the enemy, viz : of the value of about $- 
 
 and of the value of about $— , and all of the total value of about 
 
 62. Specification: In that did, at , on or about the day of 
 
 , 19 — , neglect to secure for the service of the United States the following 
 
 property which had been taken from the enemy, viz: of the value of 
 
 about $ and of the value of about $ , and all of the total 
 
 value of about $ . 
 
 CHARGE: Violation of the 80th Article of War. 
 
 63. Specification: In that did, at , or about the day 
 
 of , 19 — , unlawfully (buy) (sell) ( : — ) the following articles of 
 
 (captured) (abandoned) property, namely: of the value of about 
 
 $ and of the value of about $ , and all of the total value of 
 
 about $ , thereby [(accepting) (receiving) (accepting and receiving)] 
 
 [(profit) (benefit) (advantage) (profit, benefit and advantage)] to (himself) 
 [ , his (brother) ( )]. 
 
 64. Specification: In that did, at . on or about the day 
 
 of : — , 19 — , fail to give notice to proper authority that the following 
 
 (captured) (abandoned) property had come into his (possession) (custody) 
 
 (control), namely: of the value of about $ and of the 
 
 value of about $ , and all of the total value of about $ . 
 
 65. Specification: In that did, at — - — . on or about the day 
 
 of . 19 — , fail to turn over to the proper authority without delay the 
 
 following (captured) (abandoned) property which had come into his (posses- 
 sion) (custody) (control), namely: of the value of about $ and 
 
 — of the value of about $ , and all of the total value of about $ . 
 
 CHARGE: Violation of the 81st Article of War. 
 
 66. Specification: In that did, at . on or about the day 
 
 of , 19 — , inform a patrol of the enemy's forces of the whereabouts of a 
 
 military patrol of the United States forces. 
 
 67. Specification: In that did, at , on or about the s— day 
 
 of , 19—, knowingly (harbor) (protect) (harbor and protect) . a 
 
 person whom he, the said , then knew to be a member of the enemy's 
 
 forces, and who was then being sought by a patrol of the United States forces, 
 by (concealing the said member of the enemy's forces in his house) ( ). 
 
 68. Specification: In that did, at , on or about the day 
 
 of , 19 — , directly (hold correspondence with) (give intelligence to) 
 
 (hold correspondence with and give intelligence to) the enemy by writing and 
 
 transmitting secretly through the lines to one , whom he, the said . 
 
 then knew to be an (officer) ( ) of the enemy's army, a communication 
 
 (in words and figures as follows) (substantially as follows), to wit. 
 
 69. Specification: In that did, at , on or about the day 
 
 of , 19 — , furnish and deliver to certain members of the enemy's army 
 
 , of the value of about $— , and , of the value of about $ , 
 
 all of the total value of $ , he then well knowing that the persons to whom 
 
 said goods were furnished and delivered were enemies of the United States. 
 
 CHARGE: Violation of the 82d Article of War. 
 
 70. Specification: In that did, at , on or about the day 
 
 of , 19 — , (lurk) (act) (lurk and act) as a spy in and about , the 
 
 (fortification) (post) (quarters) (encampment) of the Army of the United 
 States there situated, and did there (collect) (attempt to collect) material infor- 
 mation in regard to the (numbers) (resources) (operations) ( ) of the 
 
344 MANUAL FOE COURTS-MABTIAL. 
 
 military forces of the United States, with intent to impart the same to the 
 enemy. 
 
 CHARGE: Violation of the 83d Article of War. 
 
 71. Specification: In that did, at , on or about the day 
 
 of , 19 — (through neglect) (willfully) suffer , of the value of 
 
 $ , military property belonging to the United States, to be (lost) (spoiled 
 
 by ) (damaged by ) [wrongfully disposed of by (sale to ) 
 
 ( )]. 
 
 CHARGE: Violation of the 84th Article of War. 
 
 72. Specification: In that did, at . on or about the day 
 
 of , 19 — [ (through neglect) (willfully) injure by ] (lose) , of 
 
 the value of $ — , issued for use in the military service of the United States. 
 
 73. Specification: In that did at , on or about the day 
 
 of , 19 — , (unlawfully sell to ) (wrongfully dispose of by ) 
 
 of the value of $ , issued for use in the military service of the 
 
 United States. 
 
 CHARGE: Violation of the 85th Article of War. 
 
 74. Specification: In that was, (in time of war), found drunk while on 
 
 duty as , at , on or about the day of , 19 — . 
 
 CHARGE: Violation of the 86th Article of War. 
 
 75. Specification: In that , being on guard and posted as a sentinel 
 
 (in time of war), at . on or about the day of , 19 — , was 
 
 found sleeping on his post. 
 
 76. Specification: In that , being on guard and posted as a sentinel 
 
 (in time of war), at , on or about the day of , 19 — , left 
 
 his post before he was regularly relieved. 
 
 CHARGE: Violation of the 87th Article of War. 
 
 77. Specification: In that , who was then commanding , did on 
 
 or about the day of , 19 — , become financially interested in the 
 
 sale of . brought into said — for the use of the troops thereat by 
 
 , by (receiving) (entering into an agreement to receive) from the 
 
 said ( — per cent of the profits on said sales) (the sum of $ — ) as a 
 
 consideration for the privilege (of ) extended by him to said , 
 
 78. Specification: In that . who was then commanding , did, on 
 
 or about the day of , 19 — , lay a (duty) (imposition) (duty and 
 
 imposition) of ( — per cent) ( ) on the proceeds of all sales of 
 
 brought into said — , and did appropriate the moneys collected on account 
 
 of said (duty) (imposition) (duty and imposition) to (his own use and 
 benefit) ( ). 
 
 CHARGE: Violation of the 88th Article of War. 
 
 79. Specification: In that did, on or about the day of , 
 
 19 — , do violence to , an inhabitant of the country, who was bringing (sup- 
 plies) (provisions) ( ) to the (camp) (garrison) (quarters) of the forces 
 
 of the United States there situated, by striking and beating the said . 
 
 80. Specification: In that , and , acting jointly and in concert, did, 
 
 on or about the day of , 19 — , interfere with -, an inhabitant 
 
 of the country, who was bringing (provisions) (supplies) . ( ) to the 
 
 (camp) (garrison) (quarters) of the forces of the United States there situated 
 
 by (preventing the said from passing over a road leading into said 
 
 ■ ( )• 
 
APPENDICES. 345 
 81. Specification: In that , did on or about the day of , 
 
 19 — , intimidate . an inhabitant of the country, who was bringing (provi- 
 sions) (supplies) ( ) into the (camp) (garrison) (quarters) of the forces 
 
 of the United States there situated, by. [threatening to kill the said if he 
 
 continued to bring (provisions) (supplies) (— ) into said (camp) (gar- 
 rison) (quarters)] ( ). 
 
 CHARGE: Violation of the 89th Article of War. 
 
 82. Specification: In that did at , on or about the day of 
 
 ■ ■ — -, 19 — , commit a depredation upon (an) (a) (orchard) ( ) belong- 
 
 ing to and situated near the said — , by [entering the same against 
 
 the will of the said and (removing growing fruit from trees, the property 
 
 of ) (— )]. 
 
 83. Specification: In that and did at , on or about the 
 
 day of , 19 — , commit a riot in the public streets of said 
 
 by (resisting and fighting against the peace officers of that — : — — ) ( ■ — ). 
 
 84. Specification: In that did at , on or about the day of 
 
 , 19 — , wilfully destroy a growing crop of oats in a field belonging to 
 
 — by (permitting the horses of his troop to graze in said field) ( ). 
 
 85. Specification: In that did at , on or about the day of 
 
 , 19 — , without the authority of his commanding officer (destroy a build- 
 
 ing belonging to ) ( ). 
 
 86. Specification: In that , who was then commanding , at , 
 
 did, on the day of — : , 19 — , complaint being made to him that , 
 
 a of his command, had (damaged) (destroyed) (damaged and destroyed) 
 
 ( ) , the property of , refuse to see reparation made to the 
 
 said so far as said 's pay would go toward such reparation and 
 
 as provided for in the 105th Article of War. 
 
 CHARGE: Violation of the 90th Article of War. 
 
 87. Specification: In that did at . on or about the day of 
 
 , 19 — , use a (reproachful) (provoking) (reproachful and provoking) 
 
 speech against , to wit : , or words to that effect, and did ac- 
 company said speech with a provoking gesture, to wit (shaking his closed fist 
 in the face of the said ) ( : — ). 
 
 CHARGE: Violation of the 91st Article of War. 
 
 88. Specification: In that , being officer of the day at and hav- 
 ing knowledge that and intended and were about to engage in 
 
 a duel near that , did on or about the day of , 19 — , connive 
 
 at the fighting of said duel by knowingly permitting , one of the parties 
 
 to said proposed duel, to leave the post and go toward the place appointed for 
 
 said diiel and at the time and at the hour which he, : — , then knew had been 
 
 appointed therefor. 
 
 89. Specification: In that , being officer of the day at , and hav- 
 ing knowledge on or about the day of , 19 — , that a challenge to 
 
 fight a duel had been sent by to , did fail to report the fact 
 
 promptly to the proper authority. 
 
 90. Specification: In that and did at , on or about the 
 
 — day of , 19 — , fight a duel, using, as weapons therefor, (swords) 
 
 (pistols) ( ). 
 
 91. Specification: In that did at , on or about the day of 
 
 , 19—, promote a duel between and by knowingly acting as 
 
 a messenger for and knowingly carrying from said to said 
 
 a challenge to fight a duel. 
 
346 MANUAL FOE COURTS-MARTIAL. 
 
 CHARGE:. Violation of the 92d Article of War. 
 
 92. Specification: In that did, at , on or about the day 
 
 of , 19 — , with malice aforethought, willfully, deliberately, feloniously, 
 
 unlawfully, and with premeditation kill one , a human being by (shoot- 
 ing him with a rifle) ( ). 
 
 93. Specification: In that did, at , on or about the day 
 
 of , 19 — , forcibly and feloniously against her will, have carnal knowledge 
 
 of . 
 
 CHARGE: Violation of the 93d Article of War. 
 
 94. Specification: In that did, at , on or about the day 
 
 of , 19 — , willfully, maliciously, and feloniously burn the (dwelling house) 
 
 ( ) of . 
 
 95. Specification: In that did, at , on or about the day 
 
 of , 19 — . with intent to (do him bodily harm), (commit a felony, viz, 
 
 ) feloniously (strike) ( ) (in) (on) the with a . 
 
 96. Specification: In that did, at , on or about the day 
 
 of . 19 — . in the nighttime break into and enter the (dwelling house) 
 
 ( ) of , with intent to commit a felony, viz, . 
 
 97. Specification: In that did, at , on or abouf the day 
 
 of , 19 — , fraudulently convert to his own use and benefit - — — , value 
 
 about $ , the property of , intrusted to him (by the said ) 
 
 (for by ). 
 
 98. Specification: In that did, at , on or about the day 
 
 of , 19 — , feloniously take, steal, and carry away , value about 
 
 $ — , the property of . 
 
 99. Specification: In that did, at , on or about the day 
 
 of , 19 — , willfully, feloniously, and unlawfully kill , by 
 
 him (in) (on) the with a . 
 
 100. Specification: In that . did, at , on or about the day 
 
 of , 19 — . unlawfully, willfully, and feloniously cut off the (hand) (arm) 
 
 ( ) of . (For the offense of maiming, see Specification No. 173.) 
 
 101. Specification: In that (having) (did, on the — day of , 
 
 19 — ) in a (trial by court-martial of ) (deposition for use in a trial by 
 
 court-martial of ) ( ) (taken) (take) an oath, before a competent 
 
 (tribunal) (officer) (person) that [he would (testify) (declare) (depose) 
 (certify) truly] [a (declaration) (deposition) (certificate) ( ) sub- 
 scribed by him was true] [did at on or about the day of . 
 
 19—, willfully and contrary to such oath, (state) (subscribe a statement) in 
 substance that ] which (statement) (declaration) (deposition) (certifi- 
 cate) was a material matter and which statement he did not then believe to 
 be true. 
 
 102. Specification: In that did, at , on or about the day 
 
 of , 19 — , by (force and violence) (putting him in fear) feloniously take 
 
 from the (person) (presence) of , . value about $ . 
 
 CHARGE: Violation of the 94th Article of War. 
 
 103. Specification: In that did, at , on or about the day 
 
 of , 19 — , (make) (cause to be made by ) a claim against the 
 
 (United States) (Quartermaster at ) ( ) in the amount of $ , 
 
 for (private property alleged to have been (lost) (destroyed) in the military 
 service) ( ), which claim was (false) (fraudulent) (false and fraudu- 
 lent) in that and was then known by the said ■ to be (false) 
 
 (fraudulent) (false and fraudulent). 
 
APPENDICES. 347 
 
 104. Specification: In that did, at , on or about the day 
 
 of , 19 — , (present) (cause to be presented by ) for (approval) 
 
 (payment) (approval and payment) a claim against the (United States) 
 
 (Quartermaster at ) ( ) in the amount of $— . for (services 
 
 alleged to have been rendered to the United States by ) ( ), which 
 
 claim- was (false) (fraudulent) (false and fraudulent) in that and was 
 
 then known by the said to be (false) (fraudulent) (false and fraudu- 
 lent). 
 
 105. Specification.: In that —. did, at , on or about the day 
 
 of , 19 — , enter into an (agreement) (conspiracy) (agreement and con- 
 spiracy) with , to defraud the United States by (obtaining) (aiding 
 
 to obtain) the (allowance) (payment) (allowance and payment) of a 
 
 (false) (fraudulent) (false and fraudulent) claim against the United States in 
 the amount of $ , for (supplies) ( ) alleged to have been fur- 
 nished to the United States by , which claim was (false) (fraudulent) 
 
 (false and frudulent) in that and was the known by the said to 
 
 be (false) (fraudulent) (false and fraudulent). 
 
 106. Specification: In that , for the purpose of (obtaining) (aiding 
 
 others to obtain) the (approval) (allowance) (payment) (approval, allowance, 
 and payment) of a claim against the (United States) (Quartermaster 
 
 at ) ( ), did, at , on or about the day of ■, 19 — , 
 
 (make) (use) (make and use) a . which said . as he, , 
 
 then knew contained a statement that , which statement was (false) 
 
 {fraudulent) (false and fraudulent) in that- and was then known by 
 
 the said to be (false) (fraudulent) (false and fraudulent). 
 
 107. Specification: In that , for the purpose of (obtaining) (aiding 
 
 others to obtain) the (approval) (allowance) (payment) (approval, allow- 
 ance, and payment) of a claim against the (United States) (Quartermaster 
 
 at ) ( :), did, at , on or about the day of , 19 — , 
 
 (advise) (procure) (advise and procure) the (making) (use) (making and 
 
 use) of a by , which said , as he then knew, contained a 
 
 statement that , which statement was (false) (fraudulent) (false and 
 
 fraudulent) in that , and was then known by the said to be (false) 
 
 ( fra udulent ) (false and fraudulent ) . 
 
 108. Specification: In that , for the purpose, of (obtaining) (aiding 
 
 others to obtain) the (approval) (allowance) (payment) (approval, allowance, 
 and payment) of a claim against the (United States) (Quartermaster at 
 
 • ) ( ), did, at . on or about the day of , 19 — , 
 
 (make) (procure the making of) (advise the making of) (advise and procure 
 
 the making of) an oath by that , which said oath was false in 
 
 that , and was then known by the said to be false. 
 
 109. Specification: In that , for the purpose of (obtaining) (aiding 
 
 others to obtain), the (approval) (allowance) (payment) (approval, allow- 
 ance, and payment) of a claim against the (United States) (Quartermaster 
 
 at ) ( ), did, at , on or about the day of , 19 — , 
 
 (forge) (counterfeit) (forge and counterfeit) (the signature of upon 
 
 a ) (a ) in words and figures as follows : . 
 
 110. Specification: In that , for the purpose of (obtaining) (aiding 
 
 • to obtain) the (approval) (allowance) (payment) (approval, allowance, 
 
 and payment) of a claim against the (United States) (Quartermaster at ) 
 
 < ), did, at , on or about the day of , 19 — , (advise) 
 
 (procure) (advise and procure) the (forging) (counterfeiting) (forging and 
 
 counterfeiting) by of (the signature of upon a ) (a 
 
 ) in words and figures as follows: . 
 
348 MANUAL FOE COUKTS-MAETIAL. 
 
 111. Specification: In that , for the purpose of (obtaining) (aiding 
 
 others to obtain) the (approval) (allowance) (payment) (approval, allow- 
 ance, and payment) of a claim against the (United States) (quartermaster 
 at ) ( ), did, at , on or about the day of , 19—, 
 
 , (use) (advise the use of) (procure the use of) a in words and figures 
 
 as follows: ■ (the same) (the signature thereon) being (forged) (counter- 
 feited) (forged and counterfeited), and then known by the said to be 
 
 I (forged) (counterfeited) (forged and counterfeited). 
 
 112. Specification: In that , having (charge) (possession) (custody) 
 
 (control) of (money) ( ) of the United States, (furnished) (intended) 
 
 (furnished and intended) for the military service thereof, did, at , on 
 
 or about the • day of 19 — , knowingly (deliver) (cause to be 
 
 deliverel) to , the said , having authority to receive the same, (an) 
 
 , (a) (amount) (number) (quantity) which, as he, , then knew was 
 
 ! ( dollars — cents) ( ) less than the (amount) (number) 
 
 (quantity) for which he received a (certificate) (receipt), from the said •. 
 
 113. Specification: In that , being authorized to (make) (deliver) 
 
 (make and deliver) a paper certifying the receipt of property of the United 
 States (furnished) (intended) (furnished and intended) for the military serv- 
 ice thereof, did, at , on or about. the • day Of , 19 — , (make) 
 
 (deliver) (make and deliver) to ■ a writing in words and figures as fol- 
 lows: , without having full knowledge. of the truth of the statements 
 
 therein contained and with the intent to defraud the United States. 
 
 114. Specification: In that • did, at •, on or about the day 
 
 of , 19 — (feloniously take, steal, and carry away) (embezzle) (knowingly 
 
 and wilfully misappropriate) (apply to his own use) (apply to his own benefit) 
 (apply to his own use and benefit) (wrongfully sell) (knowingly and without 
 
 proper authority sell) (wrongfully and knowingly sell), ■ : of the 
 
 value of about $ , property of the United States (furnished) (intended) 
 
 (furnished and intended) for the military service thereof. 
 
 115. Specification: In that did, at . on or about the day 
 
 of , 19 — , knowingly (purchase) (receive in pledge) from , 
 
 (in) (employed in) the military service of the United States for an (obliga- 
 tion) (indebtedness) , of the value of about $ , property of the 
 
 United States, the said not having the lawful right to (sell) (pledge) 
 
 the same. 
 
 CHARGE: Violation of the 95th Article of War. 
 
 ,116. Specification: In that , being indebted to various creditors in the 
 
 sum of about $ and being without either means or probable means with 
 
 which to liquidate within a reasonable time said indebtedness, did, at ■. , 
 
 on or about the day of . 19 — . unnecessarily contract with 
 
 a further indebtedness of about $ . 
 
 117. Specification: In that was, at , on or about the day 
 
 of , 19 — , so (drunk) (disorderly) (drunk and disorderly) while in uni- 
 form, in the presence and hearing of several persons, as to disgrace the military 
 service. 
 
 118. Specification: In that , having assigned to his claim 
 
 (against the United States) for pay in full for the month of, , 19 — , did, 
 
 at , on or about the day of , 19 — , assign to a second 
 
 claim against the United States for pay in full for the said month of , 
 
 19 — , which second claim was by him known to be false and fraudulent. 
 
 119. Specification: In that ■ — , being indebted to — in the sum of 
 
 $ for , which amount became due and payable (on) (about) (on 
 
 or about) . did, at , on or about the day of . 19 — ( 
 
APPENDICES. 349- 
 
 without due cause fail and neglect to pay said debt, notwithstanding the fact 
 
 that he had been repeatedly requested by the said : to pay the amount 
 
 thereof, thereby bringing discredit upon the military service. 
 
 120. Specification: In that , having on or about the : — day of 19 — 
 
 become indebted to in the sum of about $ for , and having 
 
 failed without due cause to liquidate said indebtedness, and having on or about 
 
 the day of , 19 — , promised in writing to said that he would 
 
 on or about the day of — , 19 — . (settle such indebtedness in full) 
 
 (pay on such indebtedness the sum of $ ), did, without due cause, at 
 
 , on or about the day of 19 — , to the disgrace of the military 
 
 service, fail to keep said promise. 
 
 121. Specification: In that , having made and executed in due form 
 
 his voucher for pay as for the month of , 19 — , and having duly 
 
 assigned the said voucher to ■, did at on or about the day 
 
 of — , 19 — , while the said voucher and the assignment thereof remained in 
 
 force and effect, falsely certify with his official signature, to the correctness of 
 another voucher for pay for the said month of — - — . 19 — , duly made, exe- 
 cuted, and assigned to , which said certificate was in words as fol- 
 lows: . 
 
 122. Specification: In that did, at , on or about the — day 
 
 of , 19 — , with intent to deceive , officially (report) (state) to the 
 
 said , that , which (report) (statement) was (known by the said 
 
 to be untrue) (believed by the said to be untrue) (made by the 
 
 said with disregard of a knowledge of the facts) (made by the said 
 
 as true when he did not know it to be true) in that . 
 
 123. Specification: In that , with intent to defraud , did, at 
 
 , on or about the day of , 19 — , unlawfully pretend to 
 
 that , well knowing that said pretenses were false, and by means thereof 
 
 did fraudulently obtain from the said (the sum of $ ) (mer- 
 chandise of the value of $ ) ( ). 
 
 124. Specification: In that .having at , on or about the . 
 
 day of , 19 — , voluntarily given his pledge in words and figures as fol- 
 lows : , which pledge was accepted by his commanding officer , did, 
 
 at , on or about the day of , 19 — , in disregard of his honor 
 
 violate said pledge by . 
 
 CHARGE: Violation of the 96th Article of War. 
 
 125. Specification: In that , being on guard as a , did, at , 
 
 on or about the day of , 19 — , abandon his guard. 
 
 [Note. — This form will be used only in case where absence .from guard is 
 coupled with an intent not to return during the tour of duty. Ordinary absence 
 from guard duty will be charged under A. W. 61.) 
 
 126. Specification: In that did, at , on or about the day 
 
 of — , 19 — , [kick a public (horse) ( ) in the belly] ( ). 
 
 127: Specification: In that. , a (sentinel) (overseer) ( ), being 
 
 in charge of prisoners, did, at , on or about the day of , . 
 
 19 — , allow , a prisoner under his charge, to (go to) (enter) (go to and 
 
 enter) an unauthorized place, to wit: . 
 
 128. Specification: In that , a (sentinel) (overseer) ( ), being in 
 
 charge of prisoners, did, at — , on or about the day of , 19~-, 
 
 aliow , a prisoner under his charge, to (hold unauthorized conversation 
 
 with ) (loiter) (neglect his task by ) (obtain ) ( ). 
 
 129. Specification: In that , a (sentinel) (overseer) ( ), being 
 
 in charge of prisoners and having received a lawful order from , to 
 
350 MANUAL FOB COUBTS-MAKTIAL. 
 
 require a prisoner under his charge to , did, at , on or about 
 
 the day of , 19 — , fail to obey the same. 
 
 130. Specification: In that did, at , on or about the day 
 
 of , 19 — , without authority, appear in civilian clothing. 
 
 131. Specification: In that did, at , on or about the day 
 
 of , 19—, appear (at) (on) (without his — : ) (with his 
 
 not buttoned) (in an unclean ) ( ). 
 
 132. Specification: In that did, at , on or about the day 
 
 of , 19 — , attempt to (strike) ( ) (in) (on) the 
 
 with . 
 
 [Note. — For assaults upon officers and noncommissioned officers amounting to 
 felonies see A. W. 93.] 
 
 133. Specification: In that did, at , on or about the day 
 
 of , 19—, (strike) ( > (in) (on) the with . 
 
 [Note. — See note under Specification 132.] 
 
 134. Specification: In that did, at (on or about the day 
 
 of , 19 — ), (between, and ), with the intention of evading 
 
 his (duty) ( ) as a (soldier) ( ), feign (illness), (disability), 
 
 (insanity), ( ). 
 
 135. Specification: In that did, at , on or about the — day 
 
 of , 19 — (attempt to), (threaten to) (strike) ( ) , a sentinel 
 
 in the execution of his duty, [ (in) (on) the ] with . 
 
 136. Specification: In that did, at , on or about the day 
 
 of , 19 — , strike ( ) , a sentinel in the execution of his duty, 
 
 (in) (on) the with . 
 
 137. Specification: In that — , a prisoner in confinement serving sentence 
 
 in the post guardhouse, ( ), did, at , on or about the day of 
 
 , 19 — , (escape) (attempt to escape) from such confinement. 
 
 138. Specification: In that . a prisoner, did, at , on or about the 
 
 day of , 19 — , use the following disrespectful language to , 
 
 a sentinel in the execution of his duty : " ," or words to that effect. 
 
 139. Specification: In that , having been restricted to the limits of 
 
 , did, at , on or about the day of , 19 — . break the 
 
 same by going to . 
 
 140. Specification: In that did, at , on or about the day 
 
 of . 19 — . unlawfully carry a concealed weapon, viz, a . 
 
 141. Specification: In that , did, at , on or about the day 
 
 of , 19 — , (urinate) (defecate) ( ) (on the floor of the squad room) 
 
 ( )• 
 
 142. Specification: In that did, at — ■ , on or about the day 
 
 of ,19 — . willfully and unlawfully [(conceal) (remove) mutilate) (ob- 
 literate) (destroy)] [attempt to (conceal) (remove) (mutilate) (obliterate) 
 (destroy)] [take and carry away with intent to (conceal) (remove) (mutilate) 
 (obliterate) (destroy) (steal)] a public record, to wit: (the descriptive list of 
 ) ( )• 
 
 143. Specification: In that . a prisoner in confinement in the post 
 
 guard house, ( ), did, at , on or about the day of , 
 
 19 — , conspire with and to escape from such confinement. (For 
 
 joint charge see par. 69.) 
 
 144. Specification: In that did, at , on or about the day, 
 
 of , 19 — , willfully destroy , value about $ . property of the 
 
 United States. 
 
 145. Specification: In that did, at , on or about the day 
 
 of , 19 — , through carelessness, discharge a (service rifle) ( ) in his 
 
 (squad room) (in his tent) ( ). 
 
APPENDICES. 350A 
 
 146. Specification: In that — . having received a lawful order from , 
 
 a sentinel in the execution of his duty, to , did, at , on or about the 
 
 day of , 19 — , (fail to obey) (willfully disobey) the same. 
 
 147. Specification: In that was, at , on or about the day 
 
 of ,19 — , (drunk) (disorderly) (drunk and disorderly) in (camp) (post) 
 
 (quarters) ( ). 
 
 148. Specification: In that was, at '■ , on or about the day 
 
 of , 19 — , (drunk) (disorderly) (drunk and disorderly) in uniform and 
 
 did thereby bring discredit upon the military service. 
 
 149. Specification: In that . a sentinel ( ) in charge of prisoners, 
 
 did, at . on or about the day of — ; , 19 — , drink intoxicating 
 
 liquor with , a prisoner under his charge. 
 
 150. Specification: In that , a prisoner, was, at , on or about 
 
 the day of , 19 — , found drunk. 
 
 151. Specification: In that , having received a lawful order from 
 
 to , the said being in the execution of his office, did, 
 
 at , on or about the day of , 19 — , fail to obey the same. 
 
 152. Specification: In that did, at , on or about the 
 
 day of , 19 — , violate (standing orders) (regulations) of by . 
 
 153. Specification: In that did, at — — — , on or about the 
 
 day of , 19 — , wrongfully use , a narcotic drug. 
 
 154. Specification: In that , being indebted to in the sum of 
 
 $ , which amount became due and payable (on) (about) , did, 
 
 at , on or about the day of , 19 — , without due cause, fail 
 
 and neglect to pay said debt, notwithstanding the fact that he had been 
 
 repeatedly requested by the said to pay the amount thereof, thereby 
 
 bringing discredit upon the military service. 
 
 155. Specification: In that , having been directed to report for prophy- 
 lactic treatment at (the post hospital) ( ) did, at , on or about 
 
 the day of , 19 — , fail to report as directed. 
 
 156. Specification: In that did, at , on or about the day 
 
 of : — , 19 — , with intent to deceive , officially (report) (state) to the 
 
 said , that , which (report) (statement) was (known by the 
 
 said to be untrue) (believed by the said ■ — to be untrue) (made by 
 
 the said with disregard of a knowledge of the facts) (made by the 
 
 said '■ as true when he did not know it to be true) in that . 
 
 157. Specification: In that , (having) (did on the day of . 
 
 19 — ,) in a (trial by court-martial of ) (deposition for use in a trial by 
 
 court-martial of ) ( ) (taken) (take) an oath, before a competent 
 
 (tribunal) (officer) (person) that [(he would testify) (declare) (depose) 
 (certify) (truly)] [a (declaration) (deposition) (certificate) ( ) sub- 
 scribed by him was true] did, at , on or about the day of , 
 
 19 — , willfully and contrary to such oath, (state) (subscribe a statement) in 
 substance that , which (statement) (declaration) (deposition) (certifi- 
 cate) ( ) he did not then believe to be true. 
 
 [Note. — For charging perjury see Specification No. 101.] 
 
 158. Specification: In that did, at , on or about the day 
 
 of , 19 — , with intent to defraud, feloniously forge (in its entirety) [by 
 
 (altering ) (erasing ) (adding )] a certain (check) ( ) 
 
 in the following words and figures . 
 
 159. Specification: In that (Sergeant) (Corporal) did, at , on 
 
 or about the day of — , 19 — , gamble with Privates and . 
 
 160. Specification: In that did, at . on or about the day 
 
 of , 19 — , gamble in quarters, in violation of orders. 
 
350B MANUAL FOB COTJBTS-MARTIAk, 
 
 161. Specification: In that did, at , on or about the day 
 
 of , 19 — , while (at a barrack window) ( ) indecently expose to 
 
 public view his ( ). 
 
 162. Specification: In that (for and in behalf of one ) did, at 
 
 , on or about the day of , 19 — , loan to $ , 
 
 under an agreement whereby he, the said , was to receive for the use of 
 
 said money for (months) (days) (interest at the rate of per cent 
 
 per (annum) (month) (the sum of $ ), thereby (demanding) (receiving) 
 
 (demanding and receiving) an usurious rate of interest for said loan. 
 
 163. Specification: In that -, while posted as a sentinel, did, at , 
 
 on or about the day of , 19 — , loiter on his post. 
 
 164. Specification: In that , with intent to defraud, did, at , on 
 
 or about the day of , 19 — , unlawfully pretend to that 
 
 , well knowing that said pretenses were false and by means thereof did 
 
 fraudulently obtain from the said (the sum of $ ) (merchandise 
 
 of the value of $ ) ( ). 
 
 165. Specification: In that , while suffering (with) (from) , did, 
 
 at . on or about the day of , 19 — , refuse to submit to the 
 
 (dental or medical treatment) (surgical operation) prescribed by , the 
 
 attending (dental) surgeon for the (disease) (injury), the said (treatment) 
 
 (operation) consisting in , being necessary and being without appreciable 
 
 risk to his life. 
 
 166. Specification: In that did, at , on or about the day 
 
 of , 19 — , willfully maim himself in the by (shooting himself with 
 
 ) ( ), thereby unfitting himself for the full performance of military 
 
 service. 
 
 167. Specification: In that . while posted as a sentinel, did, at , 
 
 on or about the day of , 19 — , sit down on his post. 
 
 168. Specification: In that did, at , on or about the ■ day 
 
 of , 19 — , commit sodomy upon the person of one . 
 
 [Note. — If the acts alleged do not amount to sodomy as defined in par. 443, 
 the acts committed will be, accurately described in the specification.] 
 
 169. Specification: In that did, at , on or about the — day 
 
 of , 19 — , while accompanying his organization on (a practice march) 
 
 (maneuvers) straggle. 
 
 170. Specification: In that did, at , on or about the day 
 
 of , 19 — , procure one to commit perjury, by inducing him, , 
 
 to take an oath before a competent (tribunal) (officer) (person) in a (trial by 
 
 court-martial of ) (deposition for use in a trial by court-martial of 
 
 ) ( ) that he, the said , would (testify) (declare) (depose) 
 
 (certify) truly [a (declaration) (deposition) (certificate) ( ) subscribed 
 
 by him was true], willfully and contrary to such oath, and, by testifying (stat- 
 ing, etc.) as follows: , which testimony (declaration, etc.) was (mate- 
 rial) (a material matter) and which he, , did not then believe to be true. 
 
 171. Specification: In that did, at , on , with intent to 
 
 defraud, feloniously utter to as true a certain (written instrument) 
 
 ( ), in the following words and figures, " ," the said well 
 
 knowing that the said (instrument) ( ) was forged. 
 
 172. Specification: In that , a prisoner on parole, did, at , on 
 
 or about the day of , 19—, break his parole by . 
 
 173. Specification: In that did, at , on or about the day 
 
 of , 19 — , with intent to (maim) (disfigure) . willfully and feloni- 
 ously [(cut) (bite) ( ) the (nose) (ear) ( ) of] [(throw) (pour) 
 
 corrosive acid ( ) upon] the said . (For mayhem, see Specification 
 
 No. 100.) 
 
APPENDIX 5. 
 SUGGESTIONS FOR TRIAL JUDGE ADVOCATES. 
 
 The judge advocate of a general or special court-martial shall prosecute in 
 the name of the United States, and shall, under the direction of the court, pre- 
 pare the record of its proceedings. (A. W. 17.) 
 
 The following notes, indicating more or less in proper sequence certain action 
 usually proper to be taken by a trial judge advocate, may be found useful : 
 
 1. UPON RECEIPT BY AN OFFICER OF AN ORDER APPOINTING 
 HIM JUDGE ADVOCATE OF A COURT-MARTIAL. 
 
 (a) Examine the order carefully and take appropriate action to cause the 
 correction of any substantial irregularity therein. 
 
 (b) Examine and study such portions of the Manual for Courts-Martial, 
 Digest of Opinions of the Judge Advocates General, Army Regulations, and War 
 Department or other orders affecting courts-martial as may appear desirable. 
 He should, in this connection, give particular attention to the duties of trial 
 judge advocates, to the procedure of courts-martial, and to the matter of evi- 
 dence. 
 
 2. UPON RECEIPT OF CHARGES IN A CASE. 
 
 (o) Prepare an envelope to contain the papers pertaining thereto. 
 
 (6) Examine the charges and all papers received to see that none appear to 
 be missing, that the charges appear to be correctly drawn, that the evidence of 
 previous convictions is complete and correct, especially as to dates, authentica- 
 tion, proper signatures, etc. 
 
 (c) Make authorized necessary changes in charges and take proper action 
 in connection with defects, if any, found in evidence of previous convictions. 
 
 (d) Report to the appointing authority necessary or desirable changes which 
 the judge advocate is not authorized to make. 
 
 (e) Furnish the accused, if he so desires, a copy of the charges; and, if he 
 desires to state, ascertain from him how he 'intends to plead. 
 
 (/) Ascertain whether accused desires counsel; and if so, ascertain whether 
 he wishes a particular person ; and if so, whom. 
 
 (g) Arrange for counsel, if desired to do so. 
 
 (h) Prepare case for trial, investigating it thoroughly, and determining upon 
 plan of prosecution. 
 
 (i) Arrange with president date and time of meeting of court. 
 
 (/) Arrange for court-martial room, see that it is in order, provided with 
 necessary tables, chairs,, stationery, and room to be heated, if necessary. 
 
 (k) Notify all members of date and time of meeting and arrange for presence 
 of other necessary persons, including the accused and his counsel, reporter, in- 
 terpreter, if required, and witnesses. 
 
 70844°— 16 24 351 
 
352 MANUAL FOR COURTS-MARTIAL. 
 
 (1) Arrange to have at trial such books, etc., as may be required. The fol- 
 lowing are frequently found necessary or useful : 
 
 Manual for Courts-Martial. 
 
 Digest of Opinions, Judge Advocates General. 
 
 Standard Text on Military Law. 
 
 Ordnance Price List. 
 
 Clothing Price List. 
 (m) Determine maximum punishment, if any, imposable upon conviction of 
 each of the several offenses charged, and note same on slip for use of court 
 in the event of a conviction. 
 
 3. UPON THE ASSEMBLING OF THE COURT. 
 
 (a) Note officers present and absent. 
 
 (6) When court appears to be ready to proceed, announce the readiness of 
 
 the prosecution to proceed with trial of , who desires to introduce 
 
 as counsel, or does not desire to introduce counsel. 
 
 (c) Swear reporter, if any. 
 
 (d) If a general court-martial, ask accused if he desires a copy of the record 
 of his trial. If he does not, do not have copy made; if he wishes copy, direct 
 reporter to prepare one. 
 
 (e) Read aloud to accused the order appointing the court and each modi- 
 fying order. 
 
 (/) Ask accused if he objects to being tried by any member present named 
 in the order or orders. 
 
 (g) After action on challenge, if any made, has been had, again ask the 
 accused whether he objects as above. Continue this until accused has no fur- 
 ther objection. 
 
 (h) Swear members of court. 
 
 (i) Be sworn by president. 
 
 (/) Read charges and specifications aloud slowly to the accused, and, having 
 done so, ask him how he pleads to the first specification, first charge — if neces- 
 sary rereading to him the specification; then how he pleads to the second 
 specification, first charge, etc. ; then to the first charge, etc. 
 
 (fc) If there be a plea of guilty, the president makes to accused the required 
 explanations and asks him the required questions. 
 
 (I) Read to court from chapter on punitive articles the gist of each of the 
 several offenses charged. 
 
 (to) Introduce and swear witnesses for the prosecution. In some cases it 
 may be desirable to acquaint the court with the particular specification with 
 which the testimony of a particular witness, is connected. 
 
 (n) In all cases attempt to establish by evidence each of the several speci- 
 fications, except such elements as may be the subjects of judicial notice or as 
 are admitted. 
 
 (o) Examine each witness, having careful regard for the rules of evidence. 
 
 (p) Offer opportunity to cross-examine. 
 
 (g) Reexamine, if desirable. 
 
 (r) Ask court if there are any questions by the court. 
 
 (8) If any witness is recalled, remind him that he is still under oath. 
 
 (t) When the prosecution has nothing further to offer for the time, announce 
 that the prosecution rests. 
 
 («) Swear witnesses for defense, in succession, and cross-examine so far 
 as desirable. 
 
APPENDICES. 353 
 
 (t>) After defense rests, swear and examine witnesses, if any, in rebuttal 
 for prosecution. 
 
 (w) If the accused neither testifies nor makes a statement, the president 
 makes to him the required explanation and asks him the required questions. 
 
 (so) Offer accused opportunity to make a statement. 
 
 (y) Make closing statement, if any. 
 
 4. ADJOURNMENT DURING TRIAL. 
 
 (a) Note time of adjournment. 
 
 (6) Arrange, if practicable, to have completed record of proceedings to 
 date ready before next assembling of court. 
 
 (c) Subscribe the record of proceedings for the day. 
 
 5. FINDINGS. 
 
 (a) After both prosecution and defense have concluded, the court closes for 
 findings, and in the case of a person not a soldier to award sentence upon con- 
 viction. 
 
 (6) Upon conviction of a soldier, the court opens for the purpose of receiv- 
 ing evidence of previous convictions, if there be any. 
 
 (1) Read aloud duly authenticated evidence of previous convictions referred 
 to the court by the appointing authority. 
 
 (2) Invite attention of court to any apparent irregularity in the evidence of 
 previous convictions. 
 
 (3) Ask the accused whether the evidence of the several previous convic- 
 tions and the statement of service as shown on the charge sheet are correct. 
 
 (4) Invite the attention of the court to any apparent irregularity in the 
 findings. 
 
 6. SENTENCE. 
 
 (in) The court will then close to determine upon and award the sentence. 
 
 (6) After awarding sentence the court notifies the judge advocate of the 
 same. 
 
 (c) Invite the attention of the court to any apparent irregularity in the sen- 
 tence. 
 
 7. ADJOURNMENT AT CLOSE OF TRIAL. 
 
 (a) After sentence has been awarded the court either proceeds to other 
 business or adjourns. 
 
 ( 6 ) Note time of proceeding to other business or of adjournment. 
 
 8. AFTER TRIAL. 
 
 (a) Complete vouchers for civilian witnesses and deliver same, if practicable, 
 before the witness leaves. 
 
 (6) Take proper measures to insure the security of the findings and sentence, 
 if recorded, and that they are not disclosed to any but the proper authority. 
 
 (c) When record is received back from reporter : 
 
 (1) Examine carefully to see that it is in proper form, complete, and correct 
 as to both form and substance. 
 
 (2) Make proper notation on index sheet as to copy of record. 
 
 (3) See that copies of evidence of previous convictions are correct, certify 
 same, and return originals to organizations. 
 
354 MANUAL FOB COUBTS-MABTIAL. 
 
 (4) If not so attached, attach index sheet and all exhibits. 
 
 (5) See that record is securely bound, 
 id) Enter findings and sentence. 
 
 (e) If findings and sentence are typewritten, add proper certificate. 
 
 (/) Authenticate record. 
 
 (g) Have president authenticate record. ~- 
 
 (h) Certify original voucher and send it to reporter or to a near disbursing 
 quartermaster, and inclose copy ■with record. 
 
 (i) Verify completeness and correctness of record by seeing that, so far as 
 necessary in the particular case, each requirement stated in Chapter XV, 
 Section I, paragraph 357 (&) has been complied with. 
 
 (}) Indorse and forward charges, accompanied by record of trial and all 
 other papers received with the case, to the appointing authority. 
 
 9. WEEKLY REPORT. 
 
 Each Saturday report through the president of the court and the commanding 
 officer all charges which have not been returned to the appointing authority, 
 showing date of receipt of each and reasons for delay in trial. 
 
 10. RECORD WHICH MAY BE KEPT. 
 
 It is suggested that when deemed desirable at least the following record be 
 kept by the trial judge advocate in each case. This record may be conveniently 
 kept on an envelope to be used as a container for the charges and various 
 papers : 
 
 Date of receipt by him of charges or other papers. 
 
 Date of preliminary consultation by him with the accused. 
 
 How accused intends to plead, if stated by him. 
 
 Counsel : 
 
 Desired? 
 
 If so, name. 
 
 If so, date on which commanding officer so informed. 
 
 Date on which judge advocate informed of appointment of counsel. 
 
 Result of examination in preparing for trial, and dates and other necessary 
 facts pertaining to each other incident connected with the case, such as mailing 
 interrogatories, subpoenaing witnesses, etc. 
 
 Date of trial. 
 
 Date and hour record received back from reporter. 
 
 Date and hour record forwarded to appointing authority. 
 
 Date of return to commanding officer of evidence of previous convictions, if 
 any, to be so returned. 
 
APPENDIX 6. 
 
 FORM FOR RECORD OF TRIAL BY GENERAL COURT-MARTIAL 
 AND REVISION PROCEEDINGS. 
 
 Record of Trial by General Court-Martial 1 of 
 
 index. 
 
 Page. 
 
 Arraignment 
 
 Pleas 
 
 Statement by accused i 
 
 Address by counsel , 
 
 Reply by judge advocate 
 
 Findings „. 
 
 Previous convictions submitted 
 
 Sentence (or acquittal) »; 
 
 Proceedings in revision 
 
 Testimony. 
 
 Name of witness. 
 
 Direct. 
 
 Cross. 
 
 Redirect. 
 
 Examina- 
 tion by- 
 court. 
 
 Recalled. 
 
 
 Page. 
 
 Page j Page. 
 
 I 
 
 Page. 
 
 Page. 
 
 
 
 i 
 
 
 
 
 
 1 
 
 
 
 
 
 
 
 
 Exhibits. 
 
 Number. 
 
 Page where 
 introduced. 
 
 Deposition of Capt. - 
 Deposition of Pvt. — 
 Letter of 
 
 fnot desired by accused. 2 
 Carbon copy of the record ( furnIshed the accused 
 
 1 See " Courts-martial, Records of trial, Chap. XV." The record will be clear 
 and legible and, if practicable, without erasure or interlineation. 
 
 Erasures or interlineations will be authenticated by the initials of the judge 
 advocate or of the president, or, in a proper case, of the assistant judge 
 advocate. 
 
 The pages of the record will be numbered at the bottom, and margins of 1 
 Inch will be left at the top, bottom, and left side of each page. 
 
 "Line out inappropriate words. 
 
 355 
 
356 MANUAL FOB COURTS-MARTIAL. 
 
 Proceedings of a general court-martial which convened at . . 
 
 pursuant to the following order: 
 
 (Here insert a literal copy of the order appointing the court and, following it, 
 copies of any orders modifying the detail.) 
 
 Fort , , 
 
 , 19—. 
 
 The court met pursuant to the foregoing order at o'clock — . in. 
 
 PBBSENT. 1 
 
 Maj. • . 5th Cavalry. 
 
 Capt. , Medical Corps. 
 
 First Lieut. , 10th Infantry. 
 
 First Lieut. , 5th Cavalry. 
 
 Second Lieut. , Coast Artillery Corps. 
 
 First Lieut. , 5th Cavalry, judge advocate. 
 
 Second Lieut. , 29th Infantry, assistant judge advocate. 
 
 Capt. , Coast Artillery Corps (detached service). 
 
 Second Lieut. . 10th Infantry (leave of absence). 
 
 The court proceeded to the trial of Private , Company 
 
 Infantry, who, on appearing before the court, stated that he did not desire . 
 counsel or introduced as counsel. 
 
 was sworn as reporter. 
 
 Capt. announced that he was the accuser and was excused and 
 
 withdrew. 
 
 (If an interpreter is to be used he should be sietirn when his services are. 
 required.)* 
 
 1 In the record of the proceedings of a court-martial at its organization for 
 the trial of a case the officers detailed as members, judge advocate, and assist- 
 ant judge advocate will be noted by name as present or absent. In the record 
 of the proceedings of subsequent sessions in the same case (except In proceed- 
 ings in revision) the following form of words will be used, subject to such 
 modification as the facts may require : " Present, all the members of the court, 
 the judge advocate, and the assistant judge advocate." When the absence of 
 an officer who has not qualified or who has been relieved or excused as a mem- 
 ber has been accounted for, no further note will be made of it. 
 
 "A member of a court-martial who knows, or has reason to believe, that he 
 will, for proper reason, be absent from a session of the court, will inform the 
 judge advocate accordingly. When a member of a court-martial is absent from 
 a session thereof, the judge advocate will cause that fact, together with the 
 reason for such absence, if known to him, to be shown in the record of the 
 proceedings. If the reason for such absence is not known to the judge advo- 
 cate, he will cause the record to show the member as absent, cause unknown. 
 
 8 Words in italics will not be copied into the record. 
 
APPENDICES. 357 
 
 The order appointing the court (and the order or orders modifying the detail, 
 if any) was (or were) read to the accused, and he was asked if he objected 
 to being tried by any member present named therein; to which he replied in 
 the negative; or 
 
 Defense: {Insert statement.) 
 
 Captain : 
 
 (Insert the statement of the challenged member, who ordinarily should re- 
 spond to the challenge by briefly admitting or denying the grounds of the chal- 
 lenge. Should the accused, after the statement, desire to call upon the member 
 to testify as to his competency, the record should continue:) 
 
 The accused having requested that the challenged member be sworn as to 
 
 his competency to act as a member of the court, was sworn by the 
 
 judge advocate and testified as follows: 
 
 The court was closed, and on being opened the president announced in the 
 presence of the accused and his counsel that the challenge was not sustained or 
 that the challenge was sustained. 
 
 // the challenge is sustained: ■ — then withdrew. 
 
 The accused was asked if he objected to any other member present, to which 
 he replied in the negative or 
 
 Defense : 
 
 (Insert objection in full, record, and continue as before until accused replies 
 m the negative.) 
 
 The members of the court, the judge advocate, and the assistant judge advo- 
 cate were then sworn. 
 
 (//. delay is desired, request should now be made and the proceedings re- 
 corded. If no continuance is requested, the record should continue:) 
 
 The accused was then arraigned upon the following charges and specifica- 
 tions :* 
 
 Charge I : Violation of the article of war. 
 
 Specification: In that, etc. 
 
 Chabge II : Violation of the article of war. 
 
 Specification 1: In that, etc. 
 
 Specification 2: In that, etc. 
 
 , Capt. Infantry. 
 
 To which the accused pleaded : 2 
 
 To the specification, Charge I : Guilty or Not guilty. 
 
 To Charge I : Guilty or Not guilty. 
 
 To Specification 1, Charge II : Guilty or Not guilty. 
 
 To Specification 2, Charge II : Guilty or Not guilty. 
 
 To Charge II : Guilty or Not guilty. 
 
 The paragraphs of the Manual for Courts-Martial that set out the gist of each 
 of the several offenses were read to the court by the judge advocate. 
 
 'All words that precede the charge proper are not parts of the charges and will 
 not be copied into the record, but the name, rank, and organization of the officer 
 subscribing the charges will be copied into the record after the charges and 
 specifications. 
 
 * In case the accused pleads guilty in whole or in part to any charge or 
 specification, the record will show the explanation of the president and the 
 reply of the accused required by par. 154 (d). 
 
358 MANUAL FOE COUBTS-MAETTAL. 
 
 Sergt. John Jones, Company , Infantry, a witness for the prose* 
 
 cution, was sworn and testified as follows : 
 
 Questions by prosecution : 
 Q. Do you know the accused? If so, state who he is. 
 
 A. I do ; Pvt. , Company , Infantry. 
 
 (The succeeding questions of the prosecution and their answers should follow' 
 in order.) 1 
 
 Questions by defense: 
 Q. ? 
 
 A. . 
 
 (// the defense declines to cross-examine the witness, the record should 
 State:) 
 The defense declined to cross-examine the witness. 
 
 Questions by prosecution: 
 Q 
 
 A. 
 
 Questions by defense: 
 
 •> 
 
 Questions by court: 
 ? 
 
 Prosecution: (Insert objection.) 
 
 Member: (Insert reply, etc.) 
 
 (If the accused or another member object, the record would proceed in a cor- 
 responding way.) 
 
 The court was closed, and on being opened the president announced in the 
 presence of the accused and his counsel that the objection was sustained or was 
 not sustained. 
 
 (In the latter case the record should continue:) 
 
 The question was then repeated : 
 
 (If the court considers it necessary to hear the testimony of the witness read 
 or the witness desires to have any part of his testimony read for correction, the 
 record will show the fact and the corrections, if any.) 
 
 (After the proper foundation for the introduction of a writing has been laid 
 the record will continue.) 
 
 Prosecution : " I offer in evidence the " (Describe the writing or other pro- 
 posed exhibit). 
 
 Defense: (Insert his reply. If there is no objection the record will con- 
 tinue.) 
 
 1 The record should set forth fully all the testimony introduced upon the trial, 
 the oral portion as nearly as practicable in the precise words of the witness. If 
 the court should decide to strike out any part, it will not be literally stricken 
 out or omitted from the record, but will not be thereafter considered as part 
 of the evidence. 
 
APPENDICES. 359 
 
 The paper (or other proposed exhibit) was then received in evidence and is 
 appended marked — * (insert the number of the exhibit). 
 
 (If there is objection the record will continue by stating any further remarks 
 of the prosecution.) 
 
 The court was closed, and on being opened the president announced in the 
 presence of the accused and his counsel that the objection was sustained (or 
 was not sustained). 
 
 (// the objection is not sustained the record will continue as in the case where 
 there is no objection. If the objection is sustained there will be no further 
 entry.) 
 
 (If it is the defense that seeks to introduce the writing, the record would 
 proceed in a corresponding manner.) 
 
 (At the close of the prosecution the record should continue.) 
 
 Prosecution : The prosecution rests. 
 
 (If the court adjourns to meet another day the record should continue.) 
 
 The court then, at o'clock — . m., adjourned to meet at o'clock — . rn. 
 
 on . 
 
 First Lieutenant 5th Cavalry, Judge Advocate. 
 Fort , , 19 — . 
 
 The court met, pursuant to adjournment, at o'clock — . m. 
 
 Present : 
 
 All the members of the court, the judge advocate, and the assistant judge 
 advocate.* 
 
 The acpused, his counsel, and the reporter were also present. 
 
 (// the proceedings of the previous day are required to be read, the fact will 
 he recorded in the following form: 
 
 The proceedings of were read and approved, or corrected, as follows : 
 
 (In the latter case enumerate corrections, giving page and line on which they 
 occur. ) 
 
 Corpl. John Smith, Company . Infantry, a witness for the de- 
 fense, was sworn and testified as follows : 
 Questions by prosecution : 
 
 (When considered desirable, the first question may be as to the identity of the 
 witness. ) 
 
 Q. Do you know the accused? If so, state who he is. 
 
 A. . 
 
 Questions by defense: 
 1 
 
 Q. - 
 
 A. . 
 
 (Should the accused testify in his own behalf, the record will continue.) 
 
 1 AU documents and papers made part of the proceedings, or copies of them, 
 will be securely fastened (but not pasted) to the record,- in the order of their 
 introduction, after the space left for the remarks of the reviewing authority, 
 and marked " 1," " 2," " 3," etc., so as to afford easy reference. Documents or 
 other writings, or matter excluded by the court will not ordinarily be appended 
 to the record, but the record should simply specify the character of the writings 
 and the grounds upon which they were ruled out. 
 
 2 If any member is absent, if not already accounted for, add " Except — " 
 {giving cause of absence, if known). 
 
360 MANUAL FOB COURTS-MARTIAL. 
 
 The accused, at his own request, was sworn and testified as follows : 
 Questions by defense: 
 
 Q. ? 
 
 A. . 
 
 (If the defense offers no other witness, the record should continue.) 
 
 The defense had no further testimony to offer and no statement to make, or, 
 having no further testimony to offer, made the following verbal statement. 
 
 Or, having no further testimony to offer, submitted a written statement, 
 which was read to the court, and is hereto appended and marked — .* 
 
 Or, requested until o'clock — . m. to prepare his defense. 
 
 (// the court takes a recess during the time asked for, the record will 
 continue.) 
 
 The court then took a recess until o'clock — . m., at which hour the 
 
 members of the court, the judge advocate, the assistant judge advocate, the 
 accused, his counsel, and the reporter, resumed their seats. 
 
 (Or, if the court has other business before it, the record may continue.) 
 
 The court then proceeded to other business, and at o'clock — . m. 
 
 resumed the trial of this case, at which hour, etc. 
 
 Defense: (Insert statement) . 
 
 Or, The defense read to the court a statement, which is hereto appended 
 and marked — .* 
 
 The prosecution: (Insert statement). 
 
 Or, The prosecution read to the court a statement, which is hereto appended 
 and marked — . 
 
 The court was closed, and finds the accused : 
 
 Of the specification, Charge I : Guilty or, Not guilty. 
 
 Of Charge I : Guilty or Not guilty. 
 
 Of Specification 1, Charge II : Guilty, except the words " ," substitut- 
 ing therefor the words " " ; of the excepted words, " Not guilty " and of 
 
 the substituted words " Guilty." 
 
 Of Specification 2, Charge II : Guilty or Not guilty. 
 
 Of Charge II : Guilty or Not guilty, or Not guilty, but guilty of . 
 
 (If a soldier is found guilty, the record should continue.) 
 
 The court was opened and the judge advocate stated, in the presence of the 
 accused and his counsel, that he had no evidence of previous convictions to 
 submit. 
 
 Or, read the evidence of previous convictions, 2 copies of which are 
 
 hereto appended and marked " 4," " 5," etc. 
 
 (If the defense has any statement to make in regard to the previous convic- 
 tions or statement of service, it will be recorded.) 
 
 The court was closed, and sentences the accused to . 
 
 (No previous convictions, or accused acquitted.) 
 
 The court sentences the accused, Private — — — , Infantry, 
 
 to . etc., or acquits the accused. 
 
 *The statement of the accused, or argument in his defense, and all pleas to 
 the jurisdiction in bar of trial or in abatement, when in writing, should be 
 signed by the accused himself, referred to in proceedings as having been sub- 
 mitted by him, and appended to the record. 
 
 2 When the proof produced is the copy furnished to the company or other 
 commander it will be returned to him and a copy of it attached to the record, 
 if the trial be by general court-martial. The copy should be bound with the 
 record as an exhibit. 
 
APPENDICES. 361 
 
 The court, at — m., was opened and proceeded to other business. 
 
 Or, adjourned until — m., the instant. 
 
 Or, adjourned to meet at the call of the president. 
 
 Major, 5th Cavalry, President. 
 
 First Lieutenant, 5th Cavalry, Judge Advocate. - 1 
 
 (At least two blank sheets will be inserted after the adjournment and before 
 the exhibits for the decision and orders of the reviewing authority.) 
 
 BINDING AND BRIEF. 
 
 (The papers forming the complete record will be securely bound together at 
 the top (easily removed clips or paper fasteners will not be used) and the 
 record folded in four folds and briefed on the first fold, as follows: 
 
 Private, Company , Infantry. 
 
 Trial by general court-martial. 
 
 Fobm for Revision of Record. 2 
 
 Fort ; 
 
 , 19— 
 
 The court reconvened at o'clock — . m., pursuant to the following in- 
 dorsement : 
 
 (Insert copy of indorsement.) 
 
 PRESENT. 5 
 
 Maj. , 5th Cavalry. 
 
 Capt. — , Medical Corps. 
 
 First Lieut. . 10th Infantry. 
 
 First Lieut. — , 5th Cavalry. 
 
 Second Lieut. , Coast Artillery Corps. 
 
 First Lieut. , 5th Cavalry, judge advocate. 
 
 Second Lieut. . 29th Infantry, assistant judge advocate. 
 
 (Insert names of absentees and state cause of absence, if known.) 
 The judge advocate read to the court the foregoing indorsement of the con- 
 vening authority. 4 
 
 1 In case of the death, disability, or absence of the judge advocate, see 
 A. W. 33. When the judge advocate records the findings and sentence by the 
 use Of a typewriting medium he will certify immediately after the authentica- 
 tion of the record as follows : " I certify that I recorded the findings and sen- 
 tence of the court." When the record is completed the judge advocate will for- 
 ward it without delay to the appointing authority as an inclosure to the in- 
 dorsement of the judge advocate, returning the original charges. 
 
 2 See " Record of revision," par. 357, ante. The court is usually reconvened by 
 indorsement on the charges returning them to the president of the court with 
 the directions of the appointing authority. 
 
 3 The record should show the name of each member of the court present dur- 
 ing the proceedings in revision. 
 
 4 The judge advocate will also read any other indorsements that may be con- 
 nected with the proceedings in revision. 
 
362 MANUAL FOR COURTS-MARTIAL. 
 
 The court was closed and revokes its former findings and sentence, and 
 finds the accused, etc. 
 
 Or, revokes its former sentence and sentences the accused, etc. 
 
 Or, respectfully adheres to its former findings and sentence. 
 
 Or, amends the record by, etc. 1 
 
 The judge advocate was then recalled and the court at . m., etc. 
 
 Major, 5th Cavalry, President. 
 
 First Lieutenant, 5th Cavalry, Judge Advocate. 
 
 (The record of revision will be appended to the original proceedings, follow- 
 ing them immediately, before the exhibits, and will be forwarded by indorse- 
 ment on the charges to the appointing authority.) 
 
 1 See par. 364. 
 
APPENDIX 7. 
 FORM FOR RECORD OF TRIAL BY A SPECIAL COURT-MARTIAL. 
 
 FOBT 
 
 -,19—. 
 
 The special court-martial appointed by paragraph , Special Orders, No. 
 
 , Headquarters — , — - — . 19 — 1 as modified by paragraph — , 
 
 Special Orders, No. . Headquarters . met at . — m. 
 
 PRESENT. 
 ABSENT. 8 
 
 The court proceeded to the trial of Private , Company — , 
 
 Infantry, who, on appearing before the court 1 - (stated that he did not desire 
 counsel) (introduced as counsel). 
 
 ( was sworn as reporter.) 4 
 
 (Capt. , because ineligible, was excused and withdrew.) 
 
 (First Lieuts. and were, upon challenge, excused and with- 
 drew. ) 
 
 The accused stated that he had no objection to trial by any member (re- 
 maining) present. 
 
 The members of the court and the judge advocate were sworn. 
 
 The accused was arraigned upon the following charges and specifications: 
 
 Charge I : Violation of the aiticle of war. 
 
 Specification: In that, etc. 
 
 Charge II : Violation of the article of war. 
 
 Specification 1: In that, etc. 
 
 Specification 2: In that, etc. 
 
 Captain, Infantry. 
 
 To all specifications and charges : 
 To the Specification, Charge I : — 
 
 To Charge I : . 
 
 To Specification 1, Charge II : — 
 To Specification 2, Charge II : — 
 To Charge II : . 
 
 1 The number, source, and date of the order appointing the court and of each 
 order modifying the detail will be stated. 
 
 2 Statement of neither reason nor authority for the absence is required. 
 
 3 Words inclosed in parentheses will in a proper case be omitted. 
 
 4 A judge advocate of a special court may, when authorized by the appointing 
 authority, employ a stenographic reporter, to be paid at the rates fixed in 
 paragraph . 
 
 " 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. 
 
 " This or similar language will be used when the pleas to all the specifications 
 and charges are the same. 
 
 ' For action when the accused pleads guilty in whole or in part and evidence 
 is recorded, see par. 154 {d). 
 
 363 
 
364 MANUAL FOB COTJKTS-MAETIAL. 
 
 The following-named persons were sworn and testified: 
 
 Sergt. • , Infantry. 
 
 Corpl. — , Infantry. 
 
 Pvt. , Infantry. 
 
 The defense was given full opportunity to examine each witness. 
 
 (The depositions of the following-named persons were received in evidence 
 and are hereto appended marked — , — , — .) 
 
 The accused (at his own request was sworn and testified) (made a statement 
 to the court). 
 
 The accused stated that he had nothing further to offer. 
 
 The court was closed and finds the accused: 
 
 Of all specifications and charges : .* 
 
 Of the. Specification, Charge I : . 
 
 Of Charge I : . 
 
 Of Specification 1, Charge II : . 
 
 Of Specification 2, Charge II : . 
 
 Of Charge II : . 
 
 (The court therefore acquits him.) 
 
 The court was opened and the judge advocate, in the presence of the accused 
 (and his counsel) (stated that he had no evidence of previous convictions to 
 submit) (read the evidence of previous convictions.) 
 
 (The court was closed and sentences the accused to .) 
 
 The court was opened and (proceeded to other business) (adjourned.) 2 
 
 Major, Infantry, President, 
 
 First Lieutenant, Infantry, Judge Advocate. 
 
 Approved, , 191 — 
 
 Colonel, Infantry, Commanding. 
 
 1 This or similar language will be used when the findings of the court on all 
 the specifications and charges are the same. 
 
 'One copy only of the record will be made. It will not be indexed, will ba 
 briefed as is a general court-martial record, and will be securely bound. 
 
APPENDIX 8. 
 FORM FOR RECORD OF TRIAL BY SUMMARY COURT. 
 
 Charge Sheet. No. in Summary Court Record 
 
 (Place.) (Date.) 
 
 (Surname.) (Christian name.) (Rank and organization.) 
 
 Date current enlistment : : . Rate of pay : - 
 
 Previous service : 
 
 (Give dates, with character given on each discharge.) 
 Arrest : . No. of previous convictions : — 
 
 Date of 
 
 1 Confinement : 
 
 Witnesses : 
 
 First Sergt. , Company , Infantry- 
 Private , Company , Infantry. 
 
 Charge I : Violation of the article of war. 
 
 Specification: In that, etc. 
 
 Charge II : Violation of the article of war. 
 
 Specification 1: In that, etc. 
 Specification 2: In that, etc. 
 
 [1st Ind.] 
 
 Headquarters , . 19 — . To Capt. , Infantry, Sum- 
 mary Court, for trial. 
 
 By order of Col. . 
 
 Captain, Infantry, Adjutant. 
 
 Findings: (// the findings as to all Me specifications and charges are the 
 same, a single proper entry, such as " Guilty," or " Not guilty," will he made. 
 If necessary, however, in order to show the facts, detailed entries loill be 
 made. ) 
 
 Sentence : 
 
 Captain, Infantry, Summary Court. 
 
 Approved , 19 — . 
 
 Colonel, Infantry, Commanding. 
 
 365 
 
APPENDIX 9. 
 FORMS FOR SENTENCES. 
 
 (For forms for action by reviewing authority on sentences by courts-martial, 
 see Appendix 10.) 
 
 A sentence adjudged by a court-martial will, in a proper case, be expressed 
 substantially in one or another of the forms following. When desirable, in a 
 proper case, two or more of the forms may be combined. 
 
 1. To have his pay for days detained. 
 
 2. To have two-thirds (or other fraction) of his pay per month for 
 
 months detained. 
 
 3. To. forfeit days' pay. 
 
 4. To forfeit two-thirds (or other fraction) of his pay per month for 
 
 months. 
 
 5. To perform hard labor for days (or months). 
 
 6. To be confined at hard labor for days (or months) . 
 
 7. To be confined at hard labor, at such place as the reviewing authority may 
 direct, for days (or months or years). 
 
 8. To be confined at hard labor, at such place as the reviewing authority may 
 
 direct, for months and to forfeit two-thirds (or other fraction) of his pay 
 
 per month for a like period. 
 
 9. To be dishonorably discharged the service and to forfeit all pay and allow- 
 ances due or to become due. 
 
 10. To be dishonorably discharged the service, to forfeit all pay and allowances 
 due or to become due while in confinement under this sentence, and to be con- 
 fined at hard labor, at such place as the reviewing authority may direct, for 
 days (or months or years). 
 
 11. To be reduced to the ranks. 
 
 12. To vacate all- rights and privileges arising from his certificate of eligibility. 
 
 13. To be admonished. 
 
 14. To be reprimanded. 
 
 15. To be restricted to the limits of his post (or other place) for 
 
 months. 
 
 16. To be suspended from duty for months. 
 
 17. To be suspended from command for months. 
 
 18. To be suspended from rank for months. 
 
 19. To be reduced in rank files. 
 
 20. To be reduced in rank so that his name shall appear in the lineal list of 
 officers of his arm next below that of . 
 
 21. To be dismissed the service. 
 
 22. To pay to the United States a fine of dollars and to be confined at 
 
 hard labor, at such place as the reviewing authority may direct, until said fine 
 is so paid, but for not more than months (or years). 
 
 ' 70844°— 16 25 367 
 
368 MANUAL FOE COURTS-MARTIAL. 
 
 23. To pay to the United States a fifie of dollars, to be confined at hard 
 
 labor, at such place as the reviewing authority may direct, (or months 
 
 (or years), and to be further confined at hard labor until said fine is so paid, 
 
 but for not more than months (or years), in addition to the 
 
 months (or years) hereinbefore adjudged. 
 
 24. To be confined at hard labor, at such place as the reviewing authority may 
 direct, for the term of his natural life. 
 
 25. To be shot to death with musketry. 
 
 26. To be hanged by the neck until dead. 
 
APPENDIX 10. 
 FORMS FOR ACTION BY REVIEWING AUTHORITY. 
 
 (For forms for sentences see Appendix 9.) 
 
 The following forms will serve as a general guide for reviewing authorities 
 in recording, in cases in which such forms are appropriate, their action on 
 sentences imposed by courts-martial. In a proper case the substance of two 
 or more of the forms may be combined. Likewise, the action as recorded may 
 contain proper matter additional to that set out in any of the several forms. 
 
 A. FORMS FOR ORIGINAL ACTION. 
 
 1 Approved (or disapproved) . 191 — . 
 
 Colonel 
 
 Infantry, Commanding. 
 
 Headquarters . . 191 — . 
 
 Approved (or disapproved). 
 
 3 Approved and suspended 
 
 Colonel, - 
 — . 191—. 
 
 Infantry, Commanding. 
 
 Colonel, : Infantry, Commanding. 
 
 4 Approved, and forfeiture (or confinement) suspended, , 191 — . 
 
 Colonel, 
 
 Infantry, Commanding. 
 
 Headquarters 
 
 191—. 
 
 In the foregoing case of — 
 executed (or is disapproved). 
 
 6 
 In the foregoing case of 
 
 the sentence is approved and will be duly 
 
 Colonel, 
 
 Infantry, Commandi/ng. 
 
 Headquarters 
 
 191—. 
 
 — the sentence is approved, but owing to the 
 
 length of time the accused has been in confinement days (or months) of 
 
 the confinement imposed are remitted. As thus modified the sentence will be 
 duly executed. 
 
 Colonel, 
 
 Infantry, Commanding. 
 
 Headquarters 
 
 191- 
 
 In the foregoing case of ■ 
 
 — the findings of Specifications 1 and 2, Charge 
 II, are disapproved. The sentence is approved and will be duly executed. 
 
 Colonel, 
 
 Infantry, Commanding. 
 369 
 
370 MANUAL FOB COURTS-MARTIAL. 
 
 8 Headquarters , , 191 — . 
 
 In the foregoing case of only so much of the findings of guilty 
 
 of the specification of Charge I and of Charge I as involves a finding of guilty 
 
 of absence without leave from to , terminated by apprehension 
 
 (or surrender) is approved. Only so much of the sentence as provides for 
 is approved and will be duly executed. 
 
 Colonel, Infantry, Commanding. 
 
 9 Headquarters ■ , , 191 — . 
 
 In the foregoing case of the sentence is approved, but the execution 
 
 thereof is suspended. 
 
 Colonel, Infantry, Commanding. 
 
 10 Headquarters , , 191 — . 
 
 In the foregoing case of the sentence is approved but the execution 
 
 thereof, in so far as it relates to forfeiture of pay (or to confinement) is 
 suspended. 
 
 Colonel, Infantry, Commanding. 
 
 11 Headquarters , , 191 — . 
 
 In the foregoing case of the sentence is approved and will be duly 
 
 executed but the execution of that portion thereof adjudging dishonorable dis- 
 charge is suspended until the soldier's release from confinement. — — — is 
 designated as the place of confinement. 
 
 Colonel, Infantry, Commanding. 
 
 12 Headquarters , , 191 — . 
 
 In the foregoing case of • the sentence is approved and will be duly 
 
 executed. is designated as the place of confinement. 
 
 Colonel, Infantry, Commanding. 
 
 13 Headquarters , , 191 — . 
 
 In the foregoing case of it appears from the record of trial that the 
 
 officer who had subscribed the charges participated as a member of the court in 
 the findings and sentence. As such officer is prima facie the accuser in the 
 case, and as the record of trial contains nothing to indicate that the court 
 upon investigation arrived at a finding that he was not in fact such accuser, 
 
 the proceedings are, in view of the provisions of the article of war, 
 
 invalid. 
 
 Colonel, Infantry, Commanding. 
 
 14 Headquarters , , 191 — . 
 
 In the foregoing case of it appears from the record of trial that an 
 
 officer who testified as a witness for the prosecution participated as a member 
 of the court in the findings and sentence. In view of the provisions of the 
 article of war the proceedings are invalid. 
 
 Colonel, Infantry, Commanding. 
 
APPENDICES. 3T1 
 
 15 Headquarters , , 191 — . To 
 
 In the foregoing case of the sentence is approved and the record of 
 
 trial is forwarded for action under the fortv-eighth article of war. 
 
 Colonel, Infantry, Commanding. 
 
 16 Headquarters , — , 191 — . To the'Judge Advocate General 
 
 of the Army. 
 
 In the foregoing case of the sentence is approved, but the execution 
 
 thereof is suspended until the pleasure of the President be known, and the 
 record of trial is forwarded for action under the fifty-first article of war: 
 
 Colonel, Infantry, Commanding. 
 
 17 Headquarters , — ■, 191—. 
 
 In the foregoing case of the sentence is approved and will be duly 
 
 executed at on , 191 — , under the direction of the commanding 
 
 Colonel, Infantry, Commanding. 
 
 18 Headquarters , r , 191 — . 
 
 In the foregoing case the sentence is confirmed and will be duly 
 
 executed at on . 191 — . under the direction of the commanding 
 
 Colonel, -< Infantry, Commanding. 
 
 B. FORMS FOR ORDERS VACATING SUSPENSIONS. 
 
 Headquarters , , 191 — . 
 
 1 So much of the order published in Court-Martial Order No. ■ — , 
 
 , 191 — , these headquarters, , 191 — (or found in a record of trial 
 
 by summary court approved , 191 — ), as suspends execution of sentence 
 
 in the case of is vacated and said sentence will be carried into execution. 
 
 By order of Gol. . 
 
 , Adjutant. 
 
 Headquarters , , 191 — '. 
 
 2 So much of the order published in Court-Martial Order No. • — , 
 
 , 191 — , these headquarters, , 191 — (or found in a record of trial 
 
 by summary court approved ,191 — ), as suspends execution of sentence 
 
 to confinement (or forfeiture of pay) in the case of is vacated and that 
 
 part of said sentence will be carried into execution. 
 
 By order of Col. . 
 
 , Adjutant. 
 
 Headquarters , , 191—. 
 
 3 So much of the order published in General Court-Martial Order No. • — , 
 , 191 — , these headquarters, as suspends execution of sentence to dis- 
 honorable discharge in the case of is vacated and that part of said 
 
 sentence 'vill be carried into execution. 
 
 By order of Ccl. . 
 
 , Adjutant. 
 
APPENDIX 11. 
 COURT-MARTIAL ORDERS. 
 
 A. FORM FOR GENERAL COURT-MARTIAL ORDER. 
 
 •General Court-Martial 
 Order No. 447. 
 
 Headquarters Eastern Department, 
 Governors Island, N. Y., July 27, 1919. 
 Before a general court-martial which convened at Fort Hamilton, N. Y., 
 pursuant to paragraph 6, Special Orders, No. 93, Headquarters Eastern De- 
 partment, April 24, 1919, 1 as modified by paragraph 7, Special Orders, No. 101, 
 Headquarters Eastern Department, May 26, 1919, was arraigned and tried: 
 Private John Doe, Company F, 29th Infantry. 
 Charge I : Violation of the 58th Article of War. 
 
 Specification: In that Private John Doe, Company F, 29th Infantry, did at 
 Fort Jay, N. Y., on or about March 27, 1917, desert the service of the United 
 States and did remain absent in desertion until he was apprehended at Brook- 
 lyn, N. Y., on or about June 30, 1919. 
 Charge II : Violation of the 84th Article of War. 
 
 Specification: In that Private John Doe, Company F, 29th Infantry, did at 
 Fort Jay, N. Y., on or about March 27, 1917, through neglect, lose one overcoat, 
 olive drab, value $14.84, and one blanket, light weight, value $3.79, issued for 
 use in the military service. 
 
 To the specification, Charge I : " Not guilty." 
 
 To Charge I : " Not guilty." 
 
 To the specification, Charge II : " Not guilty." 
 
 To Charge II : " Not guilty." 
 
 Or 
 
 To all the specifications and charges : " Not guilty." s 
 
 findings. 
 
 Of the specification, Charge I : " Guilty." a 
 
 Of Charge I : " Guilty." 
 
 Of the specification, Charge II : " Guilty." 
 
 1 The orders appointing the court and all orders modifying the convening 
 order will be cited. 
 
 * Where the accused pleads guilty or not guilty to all the specifications, or is 
 found guilty or not guilty of all, the form may be abbreviated as indicated. 
 
 8 If a special plea has been made and sustained by the court, the wording 
 will be : " Plea in ( ) sustained by the court." 
 
 373 
 
374 MANUAL FOE COTJBTS-MAETIAL. 
 
 Of Charge II : " Guilty." 
 
 Or 
 
 Of all the specifications and charges : " Guilty." * 
 
 SENTENCE. 
 
 To be dishonorably discharged the service; to forfeit all pay and allowances 
 due, or to become due lohile in confinement under this sentence; and to be 
 confined at hard labor at such place as the revieicing authority may direct for 
 two years. (Four previous convictions considered.) 
 
 The sentence is approved and will be duly executed. The United States Dis- 
 ciplinary Barracks is designated as the place of confinement. 
 
 By command of . 
 
 Colonel, General Staff, Chief of Staff. 
 Official : 
 
 Adjutant General, Adjutant. 
 
 B. FORM FOR SPECIAL COURT-MARTIAL ORDER. 
 
 Special Court-Martial 
 Order No. 43. 
 
 Headquarters Fort Jay, N. Y„ July 27, 1919. 
 
 Before a special court-martial which convened at Fort Jay, N. Y., pursuant 
 to paragraph 6, Special Orders, No. 93, these headquarters, April 24, 1919, as 
 modified by paragraph 7, Special Orders, No. 101, these headquarters, May 26, 
 1919, was arraigned and tried: 
 
 Private John Doe, Company F. 29th Infantry. 
 
 Charge I : Violation of the 58th Article of War. 
 
 Specification: In that Private John Doe, Company F, 29th Infantry, did at 
 Fort Jay, N. Y., on or about March 27, 1917, desert the service of the United 
 States and did remain absent in desertion until he was apprehended at Brook- 
 lyn, N. Y., on or about June 30, 1919. 
 
 Charge II : Violation of the 84th Article of War. 
 
 Specification: In that Private John Doe, Company F, 29th Infantry, did at 
 Fort Jay, N. Y., on or about March 27, 1917, through neglect, lose one overcoat, 
 olive drab, value $14.84, and one blanket, light weight, value $3.29, issued for 
 use in the military service. 
 
 PLEAS. 
 
 To the specification, Charge I : " Not guilty." 
 
 To Charge I : " Not guilty." 
 
 To the specification, Charge II : " Not guilty." 
 
 To Charge II : " Not guilty." 
 
 Or 
 
 To all the specifications and charges : " Not guilty." 2 
 
 'Where the accused pleads guilty or not guilty to all the specifications or 
 is found guilty or not guilty of all, the form may be abbreviated as indicated. 
 
 2 If a special plea has been made and sustained by the court, the wording will 
 be: " Plea in ( ) sustained by the court." 
 
APPENDICES. 375 
 
 Of the specification, Charge I : " Guilty." 1 
 
 Of Charge I : " Guilty." 
 
 Of the specification, Charge II : " Guilty." 
 
 Of Charge II : " Guilty." 
 
 Or 
 
 Of all the specifications and charges : " Guilty." * 
 
 SENTENCE. 
 
 To he confined at hard labor for six months and to forfeit two-thirds of his 
 pay per month for a like period. (Two previous convictions considered.) 
 The sentence is approved. 
 
 By order of . 
 
 Official : , 
 
 Adjutant. 
 
 Adjutant. 
 
 1 If a special plea has been made and sustained by the court, the wording will 
 be : " Plea in ( ) sustained by the court." 
 
 "Where the accused pleads guilty or not guilty to all the specifications or 
 is found guilty or not guilty of all, the form may be abbreviated as indicated. 
 
APPENDIX 12. 
 INTERROGATORIES AND DEPOSITION- 
 
 To be read in evidence before a * , United States Army, appointed to 
 
 meet at , by paragraph — , Special Orders, No. — . Headquarters , 
 
 , 191- — , in the case of (in the matter of) 2 . 
 
 -, 191—. To 
 
 Please cause to be taken on the interrogatories herein contained the deposi- 
 tion of , to be found at . 
 
 Headquarters , 191 — . To 
 
 who will take ok cause to be taken * the deposition of the person named above 
 on the interrogatories herein contained." 
 
 By of : 
 
 , Adjutant. 
 
 First interrogatory: Are you in the military service of the United States? 
 If so, what is your full name, rank, organization and station? If not, what is 
 your full name, occupation and residence? 
 
 Answer : " . 
 
 Second interrogatory: . 
 
 Answer : . 
 
 First cross-interrogatory: . 
 
 Answer : . 
 
 First interrogatory by the : 
 
 Answer : . 
 
 (Witness sign here) . 
 
 I certify that the above deposition was duly taken by me. and that the above- 
 named witness, having been first duly sworn by me, gave the foregoing answers 
 
 1 General (or special or summary) court-martial, or military commission, or 
 court of inquiry, or military board. 
 
 ' Name, rank, and organization of the accused, or other proper words identify- 
 ing the particular matter in which the deposition is desired to be used. 
 
 3 To be subscribed by the trial judge advocate or other proper person with 
 his name, rank, organization, and official title, as " judge advocate," " summary 
 court," " recorder," etc. 
 
 4 Strike out word or words not used. 
 
 B If it is desired to give special instructions, or if a travel order is necessary, 
 the remaining space will be used for the purpose. 
 
 If the spaces for answers are not sufficient, extra sheets may be inserted by 
 the officer taking the deposition. In such case he will rewrite the interroga- 
 tories, writing the answers immediately below the respective interrogatories. 
 
 377 
 
378 MANUAL, FOE COUKTS-MAETIAL. 
 
 to the several interrogatories, and that he subscribed the foregoing deposition 
 
 in my presence at , this day of , 191 — . 
 
 (Name) , 
 
 (Bank and organization) . 
 
 (Official character, as " summary court," " officer designated to take the depo- 
 sition," "notary public," etc.) 
 
 [back.] 
 Instructions. 
 
 1. Interrogatories, how submitted. — (a) The party desiring the deposition 
 submits to the opposite party the interrogatories which he wishes propounded 
 to the person whose deposition he desires, and the opposite party then submits 
 to him such cross-interrogatories, if any, as he may desire. Such additional 
 direct and cross interrogatories may be submitted as desired ; or 
 
 (6) The party desiring the deposition submits to the court, military commis- 
 sion, or board the interrogatories which he wishes propounded to the person 
 Whose deposition he desires. The opposite party then submits to the court, 
 military commission, or board such cross-interrogatories, if any, as he may 
 desire. The court, military commission, or board then submits such additional 
 interrogatories as they may deem proper and desirable, and such additional 
 direct and cross interrogatories may be submitted as are desired ; or 
 
 (c) Where the court, military commission, or board desires that the depo- 
 sition of a particular person be obtained it will cause interrogatories to be 
 prepared accordingly. The prosecution and defense (or other party or parties 
 in interest) then submit such interrogatories as they may desire. Such addi- 
 tional interrogatories may be included as are desired by the court, military 
 commission, or board, or by a party in interest. (M. C. M. par. 176.) 
 
 2. Procedure to obtain, deposition. — (a) All the interrogatories to be pro- 
 pounded to the person are entered upon the form for interrogatories and 
 deposition, and the trial judge advocate, summary court, or recorder will take 
 appropriate steps to cause the desired deposition to be taken with the least 
 practicable delay. In the ordinary case he will either send the interrogatories 
 to the commanding officer of the post, recruiting station, or other military com- 
 mand at or nearest which the person whose deposition is desired is stationed, 
 resides, or is understood to be, or will send them to some other responsible 
 person, preferably a person competent to administer oaths, at or near the place 
 at which the person whose deposition is desired is understood to be. In a 
 proper case the interrogatories may be sent to the department or other superior 
 commander, or to the witness himself, and in any case they will, when neces- 
 sary, be accompanied by a proper explanatory letter. 
 
 (6) When interrogatories are received by a commanding officer he will 
 either take or. cause to be taken the deposition thereon. He may send an in- 
 telligent enlisted man — preferably a noncommissioned officer, if available — to 
 the necessary place for the purpose of obtaining the deposition, or he may 
 properly arrange by mail or otherwise that the deposition be taken. The dep- 
 osition will be taken with the least practicable delay, and when taken will be 
 sent at once direct to the judge advocate of the court-martial trying the case, or 
 other proper person. 
 
 (c) If the witness whose deposition is desired is a civilian, the judge advo- 
 cate, or other proper person sending interrogatories as above, will inclose with 
 
APPENDICES. 379 
 
 them a prepared voucher for the fees and mileage of the witness, leaving blank 
 such' spaces provided therein as it may be necessary to leave blank, accom- 
 panied by the required number of copies of the orders appointing the court, 
 military commission, or board. The judge advocate, summary court, or recorder 
 will also send with the interrogatories duplicate subpoena requiring the witness 
 to appear in person at a time and place to be fixed by the officer, military or civil, 
 who is to take the deposition. If the name of this officer is not known, the 
 space provided for it will be left blank. If a military officer takes the depo- 
 sition, he will complete the witness voucher, certify it, and transmit it to the 
 nearest disbursing quartermaster for payment. When the deposition is to be 
 taken by a civil officer, he will be asked to obtain and furnish to the military 
 officer requested or designated to cause the deposition to be taken the neces- 
 sary data for the completion of the witness voucher, and the latter will com- 
 plete the voucher, certify it, and transmit it to the nearest disbursing quarter- 
 master for payment. In the case of a military witness, a subpoena will not ac- 
 company the interrogatories, but the officer before whom the deposition is to be 
 taken will take the necessary steps to have the witness appear at the proper 
 time and place. (M. C. M., par. 177.) 
 
 3. Payment of civilian witnesses, etc. — (a) A civilian, not in Government 
 employ, duly summoned to appear as a witness before a military court, com- 
 mission or board, or at a place where his deposition is to be taken for use before 
 such military court, commission or board, will receive $1.50 for each day of his 
 actual attendance before such military court, commission or board, or for the 
 purpose of having his deposition taken, and 5 cents a mile for going from his 
 place of residence to the place of trial or of the taking of his deposition, and 5 
 cents a mile for returning, except as follows : 
 
 (1) In Porto Rico and Cuba he will receive $1.50 a day while in attendance 
 as above stated, and 15 cents for each mile necessarily traveled over stage 
 line or by private conveyance, and 10 cents for each mile over any railway 
 or steamship line. 
 
 (2) In Alaska, east of the one hundred and forty-first degree of west longi- 
 tude, he will receive $2 a day while in attendance as above stated, and 10 cents 
 a mile ; and west of said degree $4 a day and 15 cents a mile. 
 
 (3) In the States of Wyoming, Montana, Washington, Oregon, California, 
 Nevada, Idaho, Colorado, Utah, New Mexico, and Arizona he will receive $3 a 
 day for the time of actual attendance as above stated, and for the time neces- 
 sarily occupied in going to and returning from the same, and 15 cents for each 
 mile necessarily traveled over any stage line or by private conveyance, and 5 
 cents for each mile by any railway or steamship. (M. C. M., par. 185.) 
 
 (6) Civil officers before whom depositions are taken for use in the military 
 service will be paid the fees allowed by the law of the place where the deposi- 
 tions are taken. (M. C. M., par. 181.) 
 
 4. Articles of War. 
 
 Art. 26. Depositions — before whom taken. — Depositions to be read in evi- 
 dence before military courts, commissions, courts of inquiry, or military boards, 
 or for other use in military administration, may be taken before and authenti- 
 cated by any officer, military or civil, authorized by the laws of the United 
 States or by the laws of the place where the deposition is taken to administer 
 oaths. 
 
 Art. 114. Authority to administer oaths. — Any judge advocate or acting 
 judge advocate, the president of a general or special court-martial, any summary 
 court-martial, the judge advocate or any assistant judge advocate of a general 
 or special court-martial, the president or the recorder of a court of inquiry or 
 
380 MANUAL FOR COURTS-MARTIAL. 
 
 of a military board, any officer designated to take a deposition, any officer de- 
 tailed to conduct an investigation, and the adjutant of any command shall have 
 power to administer oaths for the purposes of the administration of military 
 justice and for other purposes of military administration ; and in foreign 
 places where the Army may be serving shall have the general powers of a 
 notary public or of a consul of the United States in the administration of oaths, 
 the execution and acknowledgment of legal instruments, the attestation of 
 documents, and all other forms of notarial acts to be executed by persons sub- 
 ject to military law. 
 
 5. Taking depositions in foreign country. — If the evidence desired from a 
 witness residing in a foreign country is necessary and material and is desired 
 to be read before a court-martial, military commission, court of inquiry, or 
 military board sitting within any of the States of the Union or the District 
 of Columbia, interrogatories (accompanied by the necessary vouchers for fees 
 and mileage) will ordinarily be forwarded through military channels to The 
 Adjutant General of the Army. They will then be transmitted by the Secretary 
 of War to the Secretary of State with the request that they be sent to the 
 proper consul of the United States and the deposition of the witness taken. 
 In the case of troops serving along the international boundaries outside of the 
 United States proper, or in foreign countries, the officer exercising general 
 court-martial jurisdiction may, in his discretion, detail an officer to take the 
 deposition of a civilian witness or he may send the interrogatories direct to the 
 consul of the United States nearest the place of residence of the witness with 
 the request that the deposition be taken. In the latter case the interrogatories 
 will be accompanied by the proper vouchers for the fees and mileage of the 
 witness. (M. 0. M., par. 182.) 
 
APPENDIX 13. 
 SUBP(ENA FOR CIVILIAN WITNESS. 
 
 The President of the TJnited States to , greeting : 
 
 You are hereby summoned and required to be and appear in person on the 
 
 day of — : — , 191 — , at o'clock — m., 1 before , 2 a , 3 
 
 designated to take your deposition to be read in evidence before a * of 
 
 the TJnited States, at , appointed to meet by paragraph , Special 
 
 Orders, No. , Headquarters , dated . 191 — . then and there 
 
 to testify and give evidence as a witness for the in the case of ' , 
 
 * and you are hereby required to bring with you, to be used in evidence in said 
 
 case, the following described documents, to wit : . 
 
 And have you then and there this precept. 
 Dated at this day of , 191 — . 
 
 (To be subscribed by judge 
 advocate, recorder, etc.) 
 
 The witness is requested to subscribe on one copy of the subpcena the follow- 
 ing and to return to the person serving the subpcena the copy thereof so 
 subscribed. 
 
 . 191—. 
 
 I hereby accept service of the above subpoena. 
 
 Form No. 76, A. G. O. (Signature of witness.) 
 
 [BACK.] 
 
 Personally appeared before me the undersigned authority, , who, 
 
 being first duly sworn according to law, deposes and says that at on 
 
 , 191 — , he personally delivered to in person a duplicate of the 
 
 within subpoena. 
 
 Subscribed and sworn to before me at this clay of , 191- 
 
 (Kank, organization, and official character.) 
 
 1 L'ne out when inappropriate " before . a designated to take 
 
 your deposition to be read in evidence." 
 
 2 When used, enter name, rank, and organization, if any. 
 
 8 When used, enter official character, if any, such as judge advocate, sum- 
 mary court, notary public, etc. 
 
 4 General (or special, or summary) court-martial, etc. 
 
 5 Enter name, etc., of accused or other subject of investigation. 
 
 8 Line out when inappropriate " and you are hereby required to bring with 
 you, to be read in evidence in said case, the following described documents, 
 to wit." 
 
 381 
 
382 manual for courts-martial. 
 
 Instructions. 
 
 1. Articles of war. — (o) Process to obtain witnesses. — Every judge advocate 
 of a general or special court-martial and every summary court-martial shall 
 Lave power to issue the like process to compel witnesses to appear and testify 
 which courts of the United States, having criminal jurisdiction, may lawfully 
 issue; but such process shall run to any part of the United States, its Ter- 
 ritories, and possessions. (A. W. 22.) 
 
 (6) Refusal to appear or testify. — Every person not subject to military law 
 who, being duly subpoenaed to appear as a witness before any military court, 
 commission, court of inquiry, or board, or before any officer, military or civil, 
 designated to take a deposition to be read in evidence before such court, com- 
 mission, court of inquiry, or board, willfully neglects or refuses to appear, or 
 refuses to qualify as a witness, or to testify, or produce documentary evidence 
 which such person may have been legally subpoenaed to produce, shall be 
 deemed guilty of a misdemeanor, for which such person shall be punished 
 on information in the district court of the United States or in a court of 
 original criminal jurisdiction in any of the territorial possessions of the United 
 States, jurisdiction being hereby conferred upon such courts for such purpose; 
 and it shall be the duty of the United States district attorney or the officer 
 prosecuting for the Government in any such court of original criminal juris- 
 diction, on the certification of the facts to him by the military court, com- 
 mission, court of inquiry, or board, to file an information against and prosecute 
 the person so offending, and the punishment of such person, on conviction, shall 
 be a fine of not more than $500 or imprisonment not to exceed six months, or 
 both, at the discretion of the court : Provided, That the fees of such witness and 
 his mileage, at the rates allowed to witnesses attending the courts of the United 
 States, shall be duly paid or tendered said witness, such amounts to be paid 
 out of the appropriation for the compensation of witnesses. (A. W. 23.) 
 
 2. Tender of fees preliminary to prosecution. — In case a civilian witness is 
 duly subpoenaed under the authority of A. W. 22 and willfully neglects or 
 refuses to appear or refuses to qualify as a witness, or to testify or produce 
 documentary evidence, which he may have been legally subpoenaed to produce, 
 he will at once be tendered or paid by the nearest quartermaster one day's fees 
 and mileage for the journeys to and from the court, and will thereupon be again 
 called upon to comply with the requirements of the law. Upon failing the 
 second time to comply with the requirements of the law, a complete report of 
 the case will be made to the officer exercising general court-martial jurisdiction 
 over the command with a view to presenting the facts to the Department of 
 Justice for the punitive action contemplated in A. W. 23. (M. C. M. 172.) 
 
 3. Civilians not in Government employ. — A civilian not in Government employ, 
 duly summoned to appear as a witness before a military court, commission, or 
 board, or at a place where his deposition is to be taken for use before such court, 
 commission, or board, will receive $1.50 for each day of his actual attendance 
 before such court, commission, or board, or for the purpose of having his deposi- 
 tion taken, and 5 cents a mile for going from his place of residence to the place 
 of trial or of the taking of his deposition, and 5 cents a mile for returning, 
 except as follows: 
 
 (a) In Porto Rico and Cuba he will receive $1.50 a day while in attendance, 
 as above stated, and 15 cents for each mile necessarily traveled over stage 
 line or by private conveyance, and 10 cents for each mile over any railway or 
 steamship line. 
 
APPENDICES. 383 
 
 (&) In Alaska east of the one hundred and forty-first degree of west longi- 
 tude he will receive $2 a day while in attendance as above stated and 10 cents 
 a mile, and west of said degree $4 a day and 15 cents a mile. 
 
 (c) In the States of Wyoming, Montana, Washington, Oregon, California, 
 Nevada, Idaho, Colorado, Utah, New Mexico, and Arizona, will receive $3 a day 
 for the time of actual attendance as above stated and for the time necessarily 
 occupied in going to and returning from the same, and 15 cents for each mile 
 necessarily traveled over any stage line or by private, conveyance, and 5 cents 
 for each mile by any railway or steamship. (M. C. M., par. 185.) 
 
 [Note. — 1. Travel must be estimated by the shortest usually traveled route — 
 by established lines of railroad, stage, or steamer — the time occupied to be 
 determined by the official schedules, reasonable allowance being made for un- 
 avoidable detention. 
 
 2. These rates apply to the Philippine Islands. (See Cir. 45, A. G. O., 1902.) 
 
 3. A civilian not in Government employ, when furnished transportation on 
 transport or other Government conveyance, is entitled to 57.142 per cent of 5 
 cents per mile (equal to 2.857 cents per mile). (ComprDec, Aug. 20, 1902, pub- 
 lished in Cir. 45, A. G. O., 1902.)] 
 
 4. Civilians in Government employ. — Civilians in the employ of the Govern- 
 ment when traveling upon summons as witnesses before military courts are 
 entitled to transportation in kind from their place of residence to the place 
 where the court is in session and return. If no transportation be furnished, 
 they are entitled to reimbursement of the cost of travel actually performed by 
 the shortest usually traveled route, including transfers to and from railway 
 stations at rates not exceeding 50 cents for each transfer, and the cost of 
 sleeping-car accommodations to which entitled or steamer berth when an extra 
 charge is made therefor. They are also entitled to reimbursement of the actual 
 cost of meals and rooms at a rate not exceeding $3 per day for each day actually 
 and unavoidably consumed in travel or in attendance upon the court under the 
 order or summons. No allowance will be made to them when attendance upon 
 court does not require them to leave their stations. (M. C. M., par. 184.) 
 
 70844°— 16 26 
 
APPENDIX 14. 
 WARRANT OF ATTACHMENT. 
 
 United States 
 
 The President of the United States to — 
 
 WHEREA S — . of , was on the • 
 
 duly subpoenaed to appear and attend at — 
 191 — , at o'clock — m., before a 
 
 , greeting: 
 
 day of 191—, at 
 
 , on the day of ■ 
 
 — court-martial duly appointed by 
 
 paragraph — , Special Orders, No. — , dated Headquarters , , 191 — , 
 
 to testify on the part of the in the above-entitled case; and whereas 
 
 he has failed to appear and attend before said courtrmartial to testify, 
 
 as by said subpoena required, and whereas he is a necessary and material wit- 
 ness in behalf of the in the above-entitled case : 
 
 NOW, THEREFORE, by virtue of the power vested in me, the undersigned, 
 
 as judge advocate of 1 said court-martial, by article 22 of section 1342 of 
 
 the Revised Statutes of the TJnjted States (39 Stat., 650), you are hereby com- 
 manded and empowered to apprehend and attach the said wherever he 
 
 may be found within the United States, its Territories, or possessions and forth- 
 with bring him before the said court-martial at to testify as 
 
 required by said subpoena. 
 
 Judge Advocate of said 
 
 Court-Martial? 
 
 Dated , 
 
 , 19i- 
 
 Form No. 272, A. G. O. 
 
 1 If a summary court-martial, line out the words " judge advocate of." 
 * If a summary court-martial, line out and substitute the necessary words. 
 
 385 
 
APPENDIX 15. 
 
 Form A. 
 
 HABEAS CORPUS BY UNITED STATES COURT (WHERE A WITNESS 
 IS HELD UNDER A WARRANT OF ATTACHMENT). 
 
 RETURN TO WRIT. 
 
 In re (name of party held). 
 
 (Writ of habeas corpus — Return of respondent.) 
 
 To the (court or judge) : 
 
 The respondent, Maj. , United States Infantry, upon whom has 
 
 been served a writ of habeas corpus for the production of , 
 
 respectfully makes return and states that he holds the said by 
 
 authority of the United States, pursuant to a warrant of attachment issued 
 under section 3, act of August 29, 1916, twenty-second Article of War, by a 
 judge advocate of a lawfully convened general (or "special ") court-martial (or 
 "by a summary court-martial ") and duly directed to him, the said respondent, 
 for execution ; that he is diligently and in good faith engaged in executing said 
 warrant of attachment, and that he respectfully submits the same for the 
 inspection of the court, together with the original subpoena and proof of 
 service of the same, a copy 1 of the order appointing the court-martial, sworn to 
 
 as such, before which the said — has been subpoenaed to testify, a 
 
 copy of the charges and specifications in the case, sworn to as such, in which 
 
 said is a witness, and an affidavit of showing that 
 
 said is a material witness in the case ; that he has failed to 
 
 appear and has offered no valid excuse for such failure. 
 
 1 The copy of the order appointing the court and of the charges will be sworn 
 to by the judge advocate (or summary court-martial) before an officer author- 
 ized to administer oaths. 
 
 387 
 
388 MANUAL FOR COURTS-MARTIAL. 
 
 In obedience, however, to the said writ of habeas corpus the respondent 
 
 herewith produces before the court the body of the said , and 
 
 for the reasons set forth in this return prays this honorable court to dismiss 
 the said writ. 
 
 Major, United States Infantry. 
 
 Dated , , 
 
 — — — , 191—. 
 
 Foem B. 
 
 HABEAS CORPUS BY STATE COURT (WHERE WITNESS IS HELD 
 UNDER A WARRANT OP ATTACHMENT). 
 
 BETUBN TO WEIT. 
 
 (Make return as in case of writ by a United States court, except as to last 
 paragraph, for which substitute as follows:) 
 
 And said respondent further makes return that he has not produced the body 
 
 of the said . because he holds him by authority of the United 
 
 States as above set forth, and that this court [or "your honor," as the case 
 may be) is without jurisdiction in the premises, and he respectfully refers to 
 the decisions of the Supreme Court of the United States in Ableman v. Booth, 
 21 Howard, 506, and Tarble's case, 13 Wallace, 397, as authority for his action, 
 and prays this court (or "your honor") to dismiss the writ. 
 
 Major, United States Infantry. 
 
 Dated , , 
 
 191- 
 
 Fobm C. 
 
 HABEAS CORPUS BY UNITED STATES COURT (WHERE PRISONER 
 IS HELD FOR TRIAL OR UNDER SENTENCE). 
 
 EETTJBN TO WEIT. 
 
 In re (name of party held). 
 
 (Writ of habeas corpus — Return of respondent.) 
 
 To the ■ (court or judge) : 
 
 The respondent, Maj. , United States Infantry, upon whom has 
 
 been served a writ of habeas corpus for the production of , re- 
 spectfully makes return and states that he holds the said by 
 
 authority of the United States as a soldier in the United States Army (or " as 
 a general prisoner under sentence of general court-martial " ) under the follow- 
 ing circumstances : 
 
 That the said was duly enlisted as a soldier in the service of 
 
 the United States at , , on , 191 — , for a term of 
 
 years. (If the offense is fraudulent enlistment, this recital should be omitted.) 
 
APPENDICES. 
 
 389 
 
 (Sere state the offense. If it is fraudulent enlistment by representing himself 
 to be of the required age, it may be stated as follows:) 
 
 That on the day of , 191—, at the said , 
 
 being under 18 years of age, did fradulently enlist in the military service 
 of the United States for the term of years, by falsely representing him- 
 self to be over 18 years of age, to wit, years and months; 
 
 and has, since said enlistment, received pay and allowances (or either) there- 
 under. 
 
 (// the offense is desertion, it may be stated substantially as follows:) 
 
 That the said deserted said service at , , on 
 
 , 191 — . and remained absent in desertion until he was apprehended at 
 
 1 , on , 191 — , by . and was thereupon 
 
 committed to the custody of the respondent as commanding officer of the 
 post of . 
 
 The said has been placed in confinement (or "arrest," as the 
 
 ease may be), and formal charges have been preferred against him for said 
 offense, a copy of which, duly certified and verified, 1 is hereto annexed; and 
 that he will be brought to trial thereon as soon as practicable before a court- 
 martial, to be convened by the commanding general of the Department 
 
 (or " convened by Special Orders, No. — , dated Headquarters Depart- 
 ment, 191 — , a copy of which, duly certified and verified, 1 is herein annexed"). 
 (// the party held is a general prisoner, the following paragraph should be 
 substituted for the. preceding paragraph:) 
 
 That the said was duly arraigned for said offense before a 
 
 general court-martial, convened by Special Orders, No. , dated Head- 
 quarters Department, 191 — , was convicted thereof by said court, and was 
 
 sentenced to be , which sentence was duly approved on the day 
 
 of , 191 — , by the officer ordering the court (or "by the officer command- 
 ing said Department for the time being") as required by the 
 
 article of war. A copy of the order promulgating said sentence, duly certified 
 and vertified, 1 is hereto attached. 
 
 In obedience, however, to the said writ of habeas corpus the respondent here- 
 with produces before the court the body of the said , respectfully 
 
 refers to the decisions cited in the annexed brief (if the case does not involve 
 a minor under the required age the words " respectfully refers to the decisions 
 cited in the annexed brief" will be omitted), and for the reasons set forth in 
 this return prays this honorable court to dismiss the said writ. 
 
 Major, United States Infantry. 
 
 Dated — . , 
 
 . 191—. 
 
 1 The copy of the charges will be certified by the adjutant and sworn to before 
 an officer authorized to administer oaths for military administration, in the 
 following form : 
 
 I hereby certify that the foregoing is a full and true copy of the original 
 
 charges preferred against , and that the same are in the usual 
 
 form of military charges and conform to the rules regulating military pro- 
 cedure. 
 
 , Adjutant. 
 
 Sworn to and subscribed before me this day of , 191 — . 
 
 Judge Advocate of Court-Martial 
 (Or "Summary Court-Martial"). 
 
 The copy of the order convening the court or publishing the sentence will be 
 certified and verified in a similar manner. 
 
390 MANUAL FOE COTJBTS-MABTIAL. 
 
 Fokxi D. 
 
 HABEAS CORPUS BY STATE COURT (WHERE PRISONER IS HELD 
 FOR TRIAL OR UNDER SENTENCE). 
 
 RETURN TO WRIT. 
 
 (Make return as in case a writ by a United States court, except as to last 
 paragraph, for which substitute the paragraph set out in Form B, Appendix 15.) 
 
 INSTRUCTIONS AS TO RETURNS TO WRITS OF HABEAS CORPUS. 
 
 The following instructions in regard to returns under A. R. 998 and 999, in 
 the cases of soldiers who have committed military offenses and are held for 
 trial or punishment therefor, and of general prisoners, are for the information 
 and guidance of all concerned : 
 
 1. The return under A. R. 999 will be made in accordance with Form C 
 (Appendix 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 Army the action 
 taken by the court and forward a copy of the opinion of the court as soon as 
 it can be obtained. 
 
 2. The return under A. R. 998 will be made in accordance with Form D 
 (Appendix 15), but a copy of the brief of authorities is not intended to be 
 attached to the returns to writs of habeas corpus issuing from a State court. 
 
BRIEF TO BE FILED WITH A RETURN TO A WRIT OF HABEAS 
 CORPUS ISSUED BY A UNITED STATES COURT IN THE CASE OF 
 A SOLDIER WHOSE DISCHARGE IS SOUGHT ON THE GROUND 
 OF MINORITY. 
 
 The right to avoid the contract of enlistment of a soldier on the ground of 
 minority will be considered under the following heads: I. Under the common 
 law ; II. Under the statutes ; III. Where the minor is held for punishment. 
 
 UNDER THE COMMON LAW. 
 
 The enlistment of a minor is not avoidable by the minor nor by Ms parent or 
 guardian at common law, but is only avoidable where the right, to avoid it is 
 conferred by statute. 
 
 This proposition is clearly established by the decision of the Supreme Court 
 (In re Morrissey, 137 U. S., 157, 159), where the court said: 
 
 An enlistment is not a contract only, but effects a change of status. 
 (Grimley's case, 137 U. S., 147.) It is not, therefore, like an ordinary 
 contract, voidable by the infant. At common law an enlistment was not. 
 voidable either by the infant or by his parents or guardians'. 
 
 The court cites, in support of these statements, Rex v. Rother field Greys (1 
 Barn. & Cress., 345, 350; 8 Eng. C. L., 149) ; Rex v. Lytchet Matraverse (7 Barn. 
 & Cress., 226, 231; 14 Eng. C. L., 107) ; Commonwealth v. Gamble (11 Serg. 
 & Kawle (Pa. R.), 93) ; U. S. v. Blakeney (3 Grattan, 387, 405). 
 
 In Rex v. Rotherfield Greys, supra, it was said by Best, J. : 
 
 By the general policy of the law of England the parental authority 
 continues until the child attains the age of twenty-one years ; but the 
 same policy also requires that a minor shall be at liberty to contract an 
 engagement to serve the State. When such an engagement is contracted 
 it becomes inconsistent with the duty which he owes to the public that 
 the parental authority should continue. The parental authority, however, 
 is suspended, but not destroyed. When the reason for its suspension 
 ceases the parental authority returns. 
 
 In Rex v. Lytchet Matraverse, supra, Bayley, J., after quoting these views 
 
 of Best, J., says : 
 
 Lawrence, J., in Rex v. Roach (6 T. R., 254), seems to take the same 
 view of the subject and to consider the authority of the State paramount 
 to that of the parent so long as the minor continues in the public service, 
 but as soon as he leaves it then the parental authority is restored. 
 
 It is clear from these authorities and others which could be cited that at 
 common law the enlistment of a minor of sufficient capacity to bear arms was 
 valid regardless of age. The right of the State to the services of such minors 
 is forcefully laid down in Lanahan v. Birge (30 Conn., 438). See also Cooley's 
 Constitutional Law, page 99, where on the authority of Ex parte Brown (5 
 Cranch, C. C, 554), and United States v. Bainbridge (1 Mason, 71), it is said: 
 
 Minors may be enlisted without the consent of their parents or 
 guardians when the law fails to require such consent. 
 
 391 
 
392 MANUAL FOE COUETS-MAETIAL. 
 
 II. 
 UNDER THE STATUTES. 
 
 The pertinent statutes are the following: 
 
 Sec. 1116, K. 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 upon the minor to avoid his enlistment, cer- 
 . taimXy 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 y. 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 * * * but it gives no 
 privilege to the minor * * * an enlistment is not a contract only, but 
 effects a change of status. It is not, therefore, like an ordinary contract, 
 voidable by the infant * * *. The contract of enlistment was good, 
 so far as the petitioner is concerned. He was not only de facto but 
 de 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 
 sufficient 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. (Ex parte Hubbard, 182 Fed. Rep., 76.) 
 
APPENDICES. 393 
 
 2. The statutes requiring the consent of the parent or guardian of a minor 
 to his enlistment (section 1111, R. S., amended by section 27, act of June S, 
 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 with knowledge of the enlistment of a minor under 
 the prescribed age and acquiescing therein for a considerable period, may be 
 held to be estopped from asserting the right to avoid the enlistment. 
 
 In support of this proposition see Ex parte Dunakin (202 Fed. Rep., 290), 
 where it was held, quoting from the syllabi : 
 
 Where a minor enlisted without the consent of his parent or guardian, 
 and his mother, who was his surviving parent, on learning of his en- 
 listment shortly thereafter, did nothing to repudiate the same or to 
 secure his release, and testified that she would have been reconciled to 
 it, had he remained in the Army and not deserted, but that after his 
 desertion she wanted to keep him out of the Army, her acts constituted 
 an implied consent to his enlistment. 
 
 4. A minor fraudulently enlisting and remaining in the service after attain- 
 ing the legal age of enlistment, or the age beyond which parental consent is 
 not required, thereby validates his enlistment. 
 
 In support of this proposition see the case of Ex parte Hubbard (182 Fed. 
 Rep., 76), where the court held, quoting the syllabus: 
 
 A minor enlisted in the Army when under the age of 16, who has 
 continued to serve and receive pay after parsing 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) ; MeConologue's Case (107 Mass., 154, 170) ; In re Car- 
 ver (142 Fed. Rep., 623) ; In re Scott (144 Fed. Rep., 79) ; Dillingham v. Booker 
 (163 Fed. Rep., 696) ; Ex parte Rock (171 Fed. Rep., 240) ; Ex parte Subbard 
 (182 Fed. Rep., 76) ; Ex parte Lewkowitz (163 Fed. Rep., 646) ; United States 
 v. Williford (220 Fed. Rep., 291). 
 
 The reasons given for these decisions are that the enlistment of a minor 
 In the Army without the consent of his parent or guardian required by section 
 1117, R. S., " is not void, but voidable only " ; that the soldier being not only 
 de facto but de jure a soldier, he is subject to the Articles of War and may 
 commit a military offense; and that if held for trial or punishment for a 
 military offense, the interests of the. public in the administration of justice 
 are paramount to the right of the parent or guardian, and require that the 
 soldier abide the consequences of his offense before the question of his dis- 
 charge will be considered by the court. In the Miller Case (114 Fed. Rep., 
 
394 MANUAL FOE COURTS-MARTIAL. 
 
 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 law just as the citizen who is a 
 minor is amenable to the civil law. The parents can not prevent the 
 law's enforcement in either case * * *. 
 
 The views here cited were approved in the Reaves case (126 Fed. Rep., 127), 
 where upon full consideration of the authorities the Circuit Court of Appeals 
 remanded Reaves, a minor, who had deserted from the Navy, to custody of the 
 naval authorities as represented by the chief of police who had apprehended 
 him. In the Carver case (142 Fed. Rep., 623), the syllabus is as follows: 
 
 A minor under the age of 18 years who unlawfully enlisted in the 
 Army without the consent of his father can not be 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 Lewkowits 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. Williford, 220 Fed. Rep., 291), in which 
 the court expressly approved the views stated in the Lewkowitz case, quoting 
 section 761, R. S., relating to procedure under writs of habeas corpus, which 
 reads as follows : 
 
 The court, or justice, or judge shall proceed in a summary way to 
 determine the facts of the case by hearing the 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 
 for a military offense. 
 
APPENDIX 16. 
 
 [Sheet 1J 
 
 WAR DEPARTMENT WAR DEPARTMENT 
 
 Form No. 338. 
 Approved by the Comptroller of the «htaktekmastek corps 
 Treasury April 29, 1914 
 
 PUBLIC VOUCHEE 
 
 Voucher No , 
 
 General Account. . 
 Detail Account... 
 
 COMPENSATION, CIVILIAN 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 
 
 
 
 
 
 For allowance as a witness while in attendance — 
 
 
 
 from 191 ,to ,191 , as per 
 
 
 
 
 
 
 
 
 
 1 
 
 
 I certify that, as stated above, I attended as a witness for the period named, and as such 
 the travel between the places named was required. 
 
 (Payee) 
 
 (Do not sign in duplicate) 
 
 Examined 
 by 
 
 (Account to be completely filled in before certification, and no alteration or erasure to be made thereafter) 
 
 Icertipy that , a civilian not in Government employ, 
 
 has been in attendance from , 191 , to , 191 , 
 
 • pi ■ fas a material witness before a court-martial duly convened at this place,! 
 
 inclusive, joying deposition for use of a court-martialconvened under attached orders, J 
 
 and that he was duly summoned thereto from , and was not furnished 
 
 transportation by the Government for any portion of the journey. 
 
 Place, 
 
 Date ,191 
 
 (Title) 
 
 Paid by check No , dated , 191 
 
 favor of payee named above for $ 
 
 of 
 
 395 
 
396 
 
 MANUAL FOR COURTS-MARTIAL. 
 
 Received ,191 , of in cash, the sum of dollars 
 
 and cents, in full payment of the above account. 
 
 $ 
 
 (This form to be used only t for payment of civilian witnesses not in Government employ) 
 
 
 
 
 
 
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 ISheet 2.] 
 
 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, civilian witness 
 
 appropriation: pat, 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 
 
 rfttnfn, bring . . . Tnil<w, at. <*vn*a p<M* mWt) 
 
 For allowance as a witness while in attendance- 
 
 
 
 
 
 Giving deposition at for use before a court-martial 
 
 from , 191 , to , 191 , as per 
 
 
 
 Total 
 
 
 
 
 
 
 
 
 EXAMINED 
 BY 
 
APPENDICES. 
 
 397 
 
 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 
 
 (Date) 
 Funds derived from check No on 
 
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 dollars and cents. 
 
 (This form to be used only for payment of civilian witnesses not in Government employ) 
 
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APPENDIX 17. 
 
 WAR DEPARTMENT 
 
 Form No 350 a. 
 
 Approved by the Comptroller of the 
 
 Treasury April 29, 1914. 
 
 [Sheet 1.] 
 WAR DEPARTMENT 
 
 (Bureau or Office.) 
 PUBLIC VOUCHER 
 
 REIMBURSEMENT OE TRAVELING EXPENSES 
 
 Appropriation : Symbol $ 
 
 Appropriation ; Symbol $ 
 
 Appropriation Symbol $ 
 
 The United States, to , Dr. 
 
 Voucher No 
 
 General Account.. 
 Detail Account .. . 
 
 Fob beimbubsement of tbaveldjg expenses incurred in the discharge of 
 official duty from , 191 , to , 191 , 
 
 
 
 U.S. 
 notations 
 
 dated 
 
 schedule 1 
 
 
 , 191 , a copy of which is as per itemized 
 
 
 
 
 
 
 Amount claimed, S 
 
 ^^^^^ 
 
 = 
 
 
 
 
 
 
 Object 
 symbol 
 
 Date 
 191 
 
 Schedule of expenditures 
 
 Sub- 
 voucher 
 No. 
 
 Amount 
 
 U.S. 
 notations 
 
 
 
 
 
 
 
 
 
 MEMOBANDUM OP TEAVEL PERFORMED UPON TEANSPOETATION BEQUESTS 
 
 Examined 
 
 by 
 
 
 
 Date of 
 travel 
 
 No. of 
 transpor- 
 tation 
 request 
 
 From — 
 
 To— 
 
 Via R. R. 
 
 Amount 
 
 U.S. 
 notations 
 
 
 
 
 
 
 
 
 
 I do solemnly * that the above account and schedule are correct in all 
 
 respects; that the distances as charged have been actually and necessarily traveled 
 by me on the dates therein specified; that the amounts as charged have been actually 
 paid by me for traveling expenses; that ho part of the account has been paid by the 
 United States, but the full amount is due; that all expenditures included in said 
 
 399 
 
 70844°— 16- 
 
 -27 
 
400 
 
 MANUAL FOE COURTS-MARTIAL. 
 
 account other than my own personal traveling expenses were made under urgent and 
 unforseen public necessity; and that it was not, for the reasons stated herein, feasible 
 to have such expenditures paid directly by a disbursing officer. 
 
 Payee: 
 
 (Do not sign in duplicate) 
 
 ' Subscribed and f to before me at , this day 
 
 of , A. D. 191 
 
 ♦Swear or affirm. f Sworn to or affirmed. 
 
 I certify that the above account is correct, that the travel was performed, and that 
 it was necessary for the public service. 
 
 Apphovbh for $. 
 Date: 
 
 Title: 
 Title: 
 
 Paid by check No , dated , 191 , of. 
 
 of payee named above, for $..... . 
 
 .on , in favor 
 
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 (Date) 
 
 cents in full payment of the above account. 
 
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APPENDICES. 
 
 401 
 
 WAR DEPARTMENT 
 
 Form No. 350 a. 
 
 Approved by the Comptroller of the 
 
 Treasury April 29, 1914. 
 
 [Sheet 2.] 
 WAR DEPARTMENT 
 
 (Bureau or Office.) 
 
 PUBLIC VOUCHER. 
 
 Vottcher No 
 
 General Account. 
 
 Detail Account.. 
 
 REIMBURSEMENT OP TRAVELING EXPENSES 
 
 Appropriation Symbol $ . 
 
 Appropriation Symbol $. 
 
 Appropriation Symbol $. 
 
 The United States, To , Dr. 
 
 Address: 
 
 Foe reimbursement op traveling expenses incurred in the discharge of offi- 
 cial duty from ,191 ,to ,191 , under written authoriza- 
 tion from the , dated ,191 , 
 
 
 
 U.S. 
 notations 
 
 
 
 
 
 
 Amount claimed, $ 
 
 ^^^ 
 
 = 
 
 
 
 
 
 
 Object 
 symbol 
 
 Date 
 191 
 
 Schedule of expenditures 
 
 Sub- 
 voucher 
 No. 
 
 Amount 
 
 U.S. 
 notations 
 
 
 
 
 
 
 
 
 
 MEMORANDUM OP 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 on , in 
 
 favor of payee named above, for $ 
 
 Paid in cash by , 
 
 (Date) 
 
 Funds derived from check No on 
 
 dollars and cents. 
 
402 
 
 MANUAL FOR COURTS-MARTIAL. 
 
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APPENDIX 18. 
 
 WAR DEPARTMENT 
 Form No. 
 
 [Sheet 1.] 
 WAR DEPARTMENT 
 
 Approved by the Comptroller of the QUARTERMASTER CORPS 
 Treasury April 29, 1914 
 
 PUBLIC VOUCHER 
 
 PERSONAL SERVICES— REPORTER 
 
 appropriation: pay, etc., op the army, 191 Symbol 
 
 The United States to : , Dr. 
 
 address: 
 
 Voucher No 
 
 General Account. , 
 Detail Account. .. 
 
 Symbol 
 
 Bate 
 191 
 
 
 AMOUNT 
 
 U.S. 
 
 Notations 
 
 
 
 For services as a reporter before a convened 
 
 No , Department , 191 
 
 
 
 
 
 
 
 
 
 
 (Court, board, or commission.) 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 days in going to, in attendance on, and return- 
 
 
 
 
 
 - 
 
 
 
 (Court, board, or commission.) 
 
 
 
 
 
 
 in going to and returning from the court, being miles, 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 I certify that as s 
 places named was re 
 
 ibove stated I rendered the services named, and the travel between the 
 quired. 
 
 examined 
 
 BY 
 
 
 
 (Do not sign in duplicate) 
 
 
 (Account 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 on , in 
 
 favor of payee named above, for $ 
 
 Eeceived , 191 , of , in cash, the sum of 
 
 and cents, in full payment of the above account. 
 
 dollars 
 
 403 
 
404 
 
 MANUAL FOE COURTS-MARTIAL. 
 
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 WAR DEPARTMENT [Sheet2) Voucher No 
 
 Form No. 339. 
 Approved by the Comptroller of the WAR DEPARTMENT Oeneral Account. 
 
 Treasury April 29, 1914 
 
 QUARTERMASTER CORPS Detail Account.. 
 
 PUBLIC VOUCHER 
 
 PERSONAL SERVICES— REPORTER Symbol 
 
 appropriation: pay, etc., OP THE ARMY, 191 
 
 The United States to . , Dr. 
 
 address: 
 
 Object 
 Symbol 
 
 Date 
 191 
 
 
 Amount ■ 
 
 U. S. 
 Notations 
 
 
 
 For services as a reporter before a convened 
 
 at , pursuant to Special Orders 
 
 No , Department ,191 : 
 
 
 
 
 
 
 
 
 
 
 (Court, board, or commission.) 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 days in going to, in attendanceon, and returning 
 
 
 
 
 
 
 
 
 (Court, board, or commission.) 
 
 
 
 
 
 
 in going to and returning from the court, being 
 
 
 
 Total 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 MEMORANDUM VOUCHER 
 
 (To be filled in and retained by paying officer.) 
 
 
 
 examined 
 
 BY 
 
 Voucher certified by. . 
 Voucher approved by. 
 
APPENDICES. 
 
 Paid by check No .dated ....,191 , of ... 
 
 payee named above, f or $ 
 
 . on . 
 
 405 
 
 . , in favor of 
 
 Paid in cash by , dollars and 
 
 (Date) 
 
 Funds derived from check No on 
 
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APPENDIX 19. 
 REPORT OF INQUEST. 
 
 191- 
 
 From : summary court-martial. 
 
 To: Commanding officer. 
 
 Subject : Report of inquest over body of , deceased. 
 
 1. Pursuant to your letter (or, your oral instructions) of , I viewed 
 
 on the day of , the body of , found dead at this post, and 
 
 have examined the following witnesses, whose testimony is appended to this 
 report : 
 
 2. From a view of the body and from the evidence before me I find that 
 
 at or about m., on the day of (or, on or about the — '■ 
 
 day of ), ; , a of , Regiment of (or, 
 
 a civilian), died a natural death (or, committed suicide; or, was accidentally 
 
 killed in manner and circumstances as follows ; or, was killed by or 
 
 by some person or persons unknown, in manner and circumstances as follows : 
 (or otherwise, as the case may be). 
 
 407 
 
INDEX. 
 
 [References are to paragraphs except where pages are indicated by the letter " p " pre- 
 ceding the number. ) 
 
 Absence without leave: Par. 
 
 Defined and discussed 412 
 
 Accomplices : 
 
 See Evidence, testimonial. 
 
 Accused : 
 
 Not to be tried in irons 88 
 
 Refusal to plead ' 155 
 
 Evidence regarding character of 205 
 
 Insanity 219 
 
 Copy of record for 117 
 
 Effect of plea of guilty to be explained 154, 3.j7 
 
 Accuser. (See Witness for prosecution.) 
 
 As appointing authority 17,22 
 
 As member of court 129 
 
 Admissions : 
 
 Against interest 226 
 
 In connection with closing statement ~ 292 
 
 Affidavits : 
 
 Not admissible as evidence, exception . 269 
 
 Appointing authority: 
 
 Power of, how limited 20 
 
 General court-martial , ' 14 
 
 Special court-martial - 21 
 
 Summary court-martial 25 
 
 Action on proceedings-- 369-377 
 
 Arguments : 
 
 In closing 293 
 
 Arraignment : 
 
 When made, procedure 143,144 
 
 Arrest : 
 
 When ordered 46 
 
 Who may order 47 
 
 How executed 48 
 
 Status while in 49,53 
 
 Of deserters by civil authorities 58 
 
 Of medical officer 51 
 
 Discussed 420 
 
 Arson: 
 
 Denned and denounced 443 
 
 Articles of War: 
 
 When effective 486 
 
 Certain ones to be read and explained 110 
 
 Transitory provisions , 487 
 
 Punitive, discussed 405-446 
 
 409 
 
410 INDEX. 
 
 [References are to paragraphs except where pages are indicated by the letter " p " pre- 
 ceding the number.] 
 
 Assaulting : Par. 
 
 Superior officer 415 
 
 Noncommissioned officer 416 
 
 Persons suppressing quarrels, etc 419 
 
 Assaults : 
 
 Defined and denounced 443 
 
 Assistant judge advocate. (See Judge advocate.) 
 
 Appointment and duties 106, 107 
 
 Attachment. (See Warrant of attachment.) 
 
 Attorney and client: 
 
 See Evidence, testimonial. 
 
 Brigade commanders: 
 
 Power over summary courts-martial 29 
 
 Burden of proof: 
 
 In proving guilt 288 
 
 In collateral issues 288 
 
 Burglary: 
 
 Defined and denounced 443 
 
 Cadets : 
 
 Subject to military law 4 
 
 Oourts-martial for trial of 16 
 
 Not triable by special court-martial 41 
 
 Not triable by summary court-martial 43 
 
 Camp followers: 
 
 Subject to military law 4 
 
 Capital crimes: 
 
 Enumeration 41 
 
 Captured property: 
 
 Offenses concerning 429, 430 
 
 Challenges : 
 
 Grounds for : 121 
 
 Of new member 122 
 
 By judge advocate - 124 
 
 Procedure upon 125 
 
 Chaplains : 
 
 Not available for court-martial duty 6 
 
 Character : 
 
 Of accused, evidence regarding 205 
 
 Charges : 
 
 Who may initiate 62 
 
 Who may prefer 63 
 
 Accumulation of 65 
 
 Joint *. 69, 301 
 
 Rules to be observed in pleading 74 
 
 Submission of : 75 
 
 Investigation of 76 
 
 Forms for pp. 335-349 
 
 Charge sheet: 
 
 Form p. 333 
 
INDEX. 411 
 
 [References are to paragraphs except where pages are indicated by the letter " p " pre- 
 ceding the number.] 
 
 Civil suits against officers and soldiers: Par. 
 
 When transferable to Federal court „- 484 
 
 Clemency: 
 
 Recommendation to 332, 357 
 
 Closed sessions: 
 
 Judge advocate to withdraw 91,101 
 
 Clothing: 
 
 Selling, etc 349 
 
 Commanding officer: 
 
 Disciplinary power of 333-336 
 
 Commutation of sentences: 
 
 Can be exercised only by President 402 
 
 Competency: 
 
 Of witness 209 
 
 Complaints: 
 
 Of wrongs committed by commanding officer 485 
 
 Conduct: 
 
 Unbecoming an officer and gentleman 445 
 
 To the prejudice of good order and military discipline 446 
 
 Confessions. (See Evidence, testimonial.) 
 
 Unsupported, not to be basis for charges 70 
 
 Confinement. (See Penitentiary, Disciplinary Barracks.) 
 
 Place of, to be designated by appointing authority 394 
 
 Penitentiary, when directed 396 
 
 Disciplinary Barracks, when directed 397 
 
 In post, when directed 398 
 
 Confirmation of sentences: 
 
 When required 378 
 
 Conspirators : 
 
 See Evidence, testimonial. 
 
 Contempts : 
 
 Authority to punish 173 
 
 Who may be punished 173 
 
 Direct and constructive 173 
 
 Procedure 173 
 
 Continuance : 
 
 When granted 139-141 
 
 Convictions. (See Previous convictions.) 
 
 Coroner : 
 
 Summary, court-martial as 483 
 
 Counsel : 
 
 Appointment and duties 108-111 
 
 Countersign. (See Parole.) 
 
 Courts-martial. (See General, Special, and Summary court-martial.) 
 
 Classification 5 
 
 Composition, © 
 
 Number of members 7 
 
 By whom appointed 14, 21, 25 
 
 Not part of Federal judicial system 33 
 
 Determination of, for trial 78 
 
 Organization- T 81-142 
 
 Control over .accused 87 
 
 Power to punish contempts 173 
 
412 INDEX. 
 
 [References are to paragraphs except where pages are indicated by the letter " p " pre- 
 ceding the number.] 
 
 Courts-martial — Continued. Par. 
 
 Expenses of, how payable 193 
 
 Records of 354-368 
 
 Action on proceedings 369-400 
 
 Courts of inquiry: 
 
 Constitution, jurisdiction, etc 447-475 
 
 Cowardice : 
 
 Denounced 425 
 
 Accessory penalty 347 
 
 Credibility : 
 
 Of witness 256-262 
 
 Death, penalty: 
 
 When mandatory 40 
 
 When and how imposed 346 
 
 Dental surgeons: 
 
 Not available for court-martial duty 6 
 
 Depositions : 
 
 When admissible 174 
 
 Before whom taken 175 
 
 Procedure to obtain 177, 182 
 
 As evidence 263-268 
 
 Form for pp. 377-380 
 
 Deserter : 
 
 Arrest by civil authority - 58 
 
 Minority of, effect on jurisdiction 60 
 
 Desertion : 
 
 Evidence of 284 
 
 War Department policy regarding 340-343 
 
 Defined and discussed 409-410 
 
 Detachment : 
 
 Defined 28 
 
 Discharge. (See Dishonorable discharge.) 
 
 Jurisdiction after fraudulent 38 
 
 Effect of honorable 38 
 
 Effect of dishonorable 38 
 
 Disciplinary Barracks: 
 
 Confinement in 397 
 
 Dishonorable discharge : 
 
 When authorized 349 
 
 May be suspended 321, 393 
 
 Remission of suspended sentence of 403 
 
 Dismissal of officer: 
 
 When mandatory 40 
 
 Disorders : 
 
 Interference when attempting to suppress -419 
 
 Disrespect : 
 
 Toward President 413 
 
 Toward superior officer 414 
 
 Documents : 
 
 See Evidence. 
 
 Draft. (See Persons drafted into the service.) 
 
INDEX. 413 
 
 [References are to paragraphs except where pages are indicated by the letter " p " pre- 
 ceding the number.] 
 
 Drunkenness : Par. 
 
 As excuse for crime 285-286 
 
 On duty 435, 436 
 
 Dwelling : . 
 
 Offenses concerning , 441 
 
 Dying declarations: 
 
 See Evidence, testimonial. 
 
 Effects of deceased persons: 
 
 Disposition of 482 
 
 Embezzlement : 
 
 Defined and denounced 443 
 
 Enemy : 
 
 Relieving, harboring, holding correspondence with, giving intelligence 
 
 to 431 
 
 Enlisted Reserve Corps: 
 
 When subject to military law i 4 
 
 Enlistment. (See Fraudulent enlistment.) 
 
 Unlawful, defined and discussed 406 
 
 Equivalents : 
 
 Table of, for substituted punishments 349 
 
 Evidence : 
 
 General subject 194-289 
 
 Circumstantial 203-206 
 
 Testimonial 207-237 
 
 Documents 238-245 
 
 Depositions ; 263-275 
 
 Presumptions^ 276-288 
 
 Judicial notice 289 
 
 Rules of, followed by courts-martial 198-199 
 
 Executive order: 
 
 Prescribing maximum limits of punishments 349 
 
 Experts : 
 
 Employment and pay of — r 192, 218 
 
 False alarms: 
 
 Occasioning 425 
 
 Field clerks: 
 
 Army, subject to military law 4 
 
 Quartermaster Corps, subject to military law 4 
 
 Findings : 
 
 Discussed 294-305 
 
 General principles 297 
 
 Lesser included offense 298 
 
 Exceptions and substitutions 299 
 
 On joint charges ' : 301 
 
 Record of, by reporter 305 
 
 Frauds against the Government: 
 
 Defined and denounced 444 
 
 Accessory penalty 347 
 
 Fraudulent enlistment: 
 
 Defined and discussed : 70, 405 
 
414 INDEX. 
 
 [References are to paragraphs except where pages are indicate^ by the letter " p ' pre- 
 ceding the number.] 
 
 General court-martial: Par. 
 
 Number of members 7 
 
 By whom appointed '. 14 
 
 Jurisdiction , 39 
 
 Limit of punishment 40 
 
 Record of trial 354-357 
 
 Form for record pp. 355-362 
 
 Form for order publishing proceedings p. 373 
 
 General prisoner: 
 
 Defined 74 
 
 Sentences concerning 330 
 
 Habeas corpus: 
 
 Purpose of writ 476 
 
 In connection with warrant of attachment 169, 478 
 
 When issued by State court 477, 478 
 
 When issued by United States court 479 
 
 Writ issued in the Philippine Islands '__ 480 
 
 Form for returns pp. 387-390 
 
 Briefs for use in certain cases pp. 391-394 
 
 Handwriting. (See Evidence.) 
 
 Hearsay : 
 
 See Evidence, testimonial. 
 
 Hospitals : 
 
 Inmates, Fort Bayard and Hot Springs, subject to military law 4 
 
 Husband and wife: 
 
 See Evidence, testimonial. 
 
 Ignorance : 
 
 Of law and fact 282, 283 
 
 Incrimination. (See Self -crimination.) 
 
 Inferior courts. (See Special and Summary courts-martial.) 
 
 Inquests : 
 
 Summary court-martial to hold 483 
 
 Report of p. 407 
 
 Interpreter : 
 
 Employment and pay 119 
 
 Interrogatories. (See Deposition.) 
 
 Insanity : 
 
 Accused 219 
 
 Irons : 
 
 Accused not to be tried in 88 
 
 Jeopardy. (See Trial.) 
 
 Joint charges. (See Charges.) 
 
 Judge advocate: 
 
 Power to appoint 15 
 
 Selection and duties 94-105 
 
 Duty toward accused 96 
 
 Legal adviser of court 99 
 
 Assistant 106, 107 
 
 Suggestions for trial pp. 351-354 
 
INDEX. 415 
 
 [References are to paragraphs except where pages are indicated by the letter " p " pre- 
 ceding the number.] 
 
 Jurisdiction of courts-martial: Par. 
 
 Defined 32 
 
 Conditions necessary to show 34 
 
 When concurrent with civil 35 
 
 Can not be divested by act of accused 36 
 
 Not territorial 37 
 
 When terminated 38 
 
 General courts-martial 39, 40 
 
 Special courts-martial 41; 42 
 
 Summary courts-martial 43, 44 
 
 Other military tribunals 45 
 
 Larceny : 
 
 Defined and denounced 443 
 
 Leading questions. (See Evidence.) 
 
 Limitation on actions: 
 
 As to time 149 
 
 As to number 149 
 
 Manslaughter : 
 
 Defined and denounced 443 
 
 Marines : 
 
 Subject to military law 4 
 
 When triable by military court 4 
 
 When triable by naval court 4 
 
 When available for court-martial duty 10 
 
 Martial law: 
 
 Defined 2 
 
 Maximum limits of punishments. (See Punishments.) 
 
 Mayhem : 
 
 Defined and ■ denounced 443 
 
 Member of court-martial: 
 
 Duties 81 
 
 Absence, how accounted for 85 
 
 Decorum , 86 
 
 Voting 90 
 
 Change in 93 
 
 Quorum 7 
 
 As accuser 129 
 
 As witness 131 
 
 Military Academy: 
 
 See Superintendent ; Cadet. 
 
 Military Government: 
 
 Defined 2 
 
 Military jurisdiction: 
 
 Source 1 
 
 Kinds 2 
 
 Exercise of 3 
 
 Military law: 
 
 Defined 2 
 
 Militia. (See National Guard.) 
 
 70844°— 16 28 
 
416 INDEX. 
 
 [References are to paragraphs except where pages are indicated by th« letter " p " pre- 
 ceding the number.] 
 
 Misbehavior : Par. 
 
 Various kinds in time of war prohibited 425 
 
 Motions: 
 
 To sever 156 
 
 To elect 157 
 
 Nolle prosequi 158 
 
 Murder : 
 
 Denned and denounced 442 
 
 Muster, false: 
 
 Denned and discussed 407 
 
 Mutiny: 
 
 Denned and discussed 417, 418 
 
 National Guard: 
 
 When subject to military law 4 
 
 When available for court-martial duty 9 
 
 May be tried by Regulars 11 
 
 System of court-martial for 1 p. 331 
 
 Navy: 
 
 ■ Not subject to military law 4 
 
 I Medical department serving with marines 4 
 
 Nolle prosequi 158 
 
 Noncommissioned officer : 
 
 Reduction of 42, 44, 327, 349 
 
 May object to trial by summary court 43 
 
 Oaths : 
 
 Of members 132 
 
 Of judge advocate 133 
 
 Of witness 134 
 
 , Of reporter 135 
 
 Of interpreter 136 
 
 To test competency 137 
 
 For administration purposes 138 
 
 Officers' Reserve Corps: 
 
 When subject to military law 4 
 
 When available for court-martial duty 9 
 
 Orders : 
 
 Promulgating proceedings 400 
 
 Forms for pp. 373-375 
 
 Pardon : 
 
 As plea in bar 150 
 
 Evidence of 273 
 
 Parole : 
 
 Offenses concerning 427 
 
 Penitentiary : 
 
 Confinement in, when authorized 337-339 
 
 Perjury : 
 
 Defined and denounced 443 
 
 Persons accompanying Army in field: 
 
 Subject to military law 4 
 
 , Persons drafted into the service : 
 
 When subject to military law 4 
 
 When available for court-martial duty 9 
 
INDEX. 417 
 
 [References are to paragraphs except where pages are indicated by the letter "p" pre- 
 ceding the number.] 
 
 Persons serving with. Army in field: Par. 
 
 Subject to military law 4 
 
 Persons subject to military law : 
 
 Classes enumerated 4 
 
 Pleas : 
 
 Kinds 145 
 
 Jurisdiction 146 
 
 In abatement 147 
 
 In bar 148-151 
 
 Inadmissible 152 
 
 General issue 154 
 
 Action upon special 153 
 
 Refusal to plead 155 
 
 Post exchange: 
 
 Debts due can not be collected by court-martial 325 
 
 Postponement. (See Continuance.) 
 
 President of the United States: 
 
 As appointing authority 15 
 
 President of court-martial: 
 
 Duties 89, 154, 357 
 
 Presumptions : 
 
 Of law and fact 276-278 
 
 Previous convictions: 
 
 Denned 349 
 
 Procedure in introducing 306 
 
 Disposition of evidence of 306 
 
 Character of 307 
 
 Prisoner, military. (See General prisoner.) 
 
 Subject to military law 4 
 
 Use of irons 56 
 
 Refusal to receive or keep 55>, 421 
 
 Releasing without authority 57, 423 
 
 General 74 
 
 Suffering to escape 423 
 
 Refusing to turn over to civil authorities : 424 
 
 Privileged communications : 
 See Evidence, testimonial. 
 
 Property, military: 
 
 Offenses concerning 433, 434 
 
 Property, private: 
 
 Offenses concerning 439 
 
 Redress for injuring 481 
 
 Prosecutor. (See Accuser.) 
 
 Punishment. (See Sentence.) 
 
 Mandatory and discretionary 40 
 
 War Department, policy regarding ; 340-343 
 
 Prohibited 344,345 
 
 Maximum limits .=. 349 
 
 Mitigation of i , 380 
 
 Commutation 384 
 
 Quarrels. (See Disorders.) 
 
418 INDEX. 
 
 [References are to paragraphs except where pages are indicated by the letter " p " pre- 
 ceding the number.] 
 
 Quartermaster Corps: par. 
 
 Second lieutenants, not available for court-martial duty 6 
 
 Quorum: 
 
 For general or special court-martial 7 
 
 Rank: 
 
 Officer suspended from, not available for court-martial duty 9 
 
 Of members of courts-martial 12 
 
 Trial by inferiors in 12 
 
 Among Regulars, Volunteers, and others 12 
 
 Of appointing authority • 19 
 
 Change of 74 
 
 Immaterial in applying rules of evidence 200 
 
 Suspension from 314 
 
 Rape: 
 
 Defined and denounced 442 
 
 Reasonable doubt: 
 
 Defined— 1 288 
 
 Records of trial: 
 
 General court-martial 354-357 
 
 Special court-martial 358-362 
 
 Summary court-martial 363 
 
 Correction of 364, 365 
 
 Disposition of 366, 367 
 
 Loss of 368 
 
 Carbon copy for accused 117 
 
 Reduction : 
 
 Of noncommissioned officer 327, 349 
 
 Refusal to plead. (See Accused.) 
 
 Regular Army: 
 
 Composition 4 
 
 Officers may try members of other forces 11 
 
 Reporter : , 
 
 Employment and compensation 112-118 
 
 Res Gestae: 
 
 See Evidence, testimonial. 
 
 Retainers to the camp: 
 
 Subject to military law 4 
 
 Retired officers: 
 
 Subject to military law 4 
 
 When available for court-martial duty 9 
 
 Witness fees 183 
 
 Returns, false. 
 
 Defined and discussed 408 
 
 Reviewing authority. (See Appointing authority.) 
 
 Forms for action by, on sentence , p. 369 
 
 Revision : 
 
 Proceedings on 352 
 
 Form for 1 p. 361 
 
 Reward for apprehending deserter: 
 
 When payable ■ 329 
 
 Robbery: 
 
 Defined and denounced 443 
 
INDEX. 419 
 
 [References are to paragraphs except where pages are indicated by the letter " p " pre- 
 ceding the number.] 
 
 Safeguard : Par. 
 
 Forcing 428 
 
 Self crimination : 
 
 Compulsory, prohibited 233-236 
 
 Sentence. (See Punishment.) 
 
 Voting on 308 
 
 . For officers 310 
 
 For. soldiers , 311 
 
 Various kinds, discussed 312-328 
 
 Forms for p. 367 
 
 Not effective until approved^ 371 
 
 Mitigation and commutation 380-384 
 
 In excess of legal limit i 386 
 
 Date of beginning of 401 
 
 Suspension of 391-393 
 
 Sentinel : 
 
 Offenses committed by 436 
 
 Soldiers' Homes: 
 
 Inmates subject to military law 4 
 
 Special court-martial: 
 
 Number of members 7 
 
 By whom appointed 21 
 
 Commanding officer as member 24 
 
 Jurisdiction 41 
 
 Limit of punishment 42 
 
 Procedure . 350 
 
 Record of trial '. 358-362 
 
 Form for record pp. 363, 364 
 
 Form for order publishing proceedings p. 374 
 
 Speeches : 
 
 Using provoking 440 
 
 Spy: 
 
 Offense of, defined 432 
 
 Standing 1 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 160 
 
 Duces tecum 166 
 
 Fees for serving 191 
 
 Form for civilian witness i p. 381 
 
 Substitution of punishment. (See Equivalents.) 
 
420 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 p. 365 
 
 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. (See 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. 395 
 
 Reimbursement Government employee p. 399 
 
 Reporter , p. 403 
 
 Warrant of attachment: 
 
 When issued 168 
 
 Form for p. 385 
 
INDEX. 421 
 
 [References are to paragraphs except where pages are Indicated by the letter " p " pre- 
 ceding the number.] 
 
 Witnesses. (See Evidence.) Par. 
 
 Process to obtain 159 
 
 Subpoenas 360 
 
 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 
 
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