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CORNELL UMVERSITY LIBRARY 
 
 924 062 057 132 
 
The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924062057132 
 
MILITARY LAW 
 
 CAPT. w.' h; wAldron 
 
 29th INFAl^RY 
 
 Reprinted from 
 " NIGHT OPERATIONS " 
 Infantry Journal 
 
 March and April, 1917 
 
 WASHINGTON 
 
 United States Infantry Association 
 
 1918 
 
Cornell University Law Library. 
 
 THE GIFT OF 
 
 
 Date 
 
 %^r-^ /L/fj/.. 
 
 9181 
 
 /3 
 
 f^'^r 
 
^w-v^'--' 
 
 Military Law 
 
 A. 1. 
 
 2. 
 3. 
 4. 
 Q 
 
 A, 
 
 . What are the four classes of Military Q. 
 Jurisdiction? 
 
 Military Government (the law of hos- A. 
 tile occupation). 
 
 Martial Law at home (a domestic fact). Q. 
 Martial Law applied to the Army. 
 Military Law. A. 
 
 What is Military Government, or the law 
 of hostile occupation? i 
 
 Military power exercised by a belligerent 
 by virtue of his occupation of an 
 enemy's territory. 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 Q. 
 civil government is established by the 
 new sovereign. A. 
 
 What is Martial Law at home? 
 
 Military power exercised in time of war, 
 insurrection or rebellion, in parts of Q. 
 the country retaining their allegiance, 
 and over persons and things not ordi- A. 
 narily subjected to it. 
 
 What is the Martial Law Applied to the 
 Army? 
 
 The military power extending in time of 
 war, insurrection or rebellion, over per- 
 sons in the military service, as to obli- 
 gations arising out of such emergency 
 and not falling within the domain of 
 military law, or otherwise regulated by 
 law. 
 
 What is Military Law? Q. 
 
 The legal system that regulates the gov- A. 
 ernment of the military establishment. 
 It is a branch of the municipal law, 
 and in the United States derives its ex- 
 istence from special constitutional 
 grants of power. 
 
 What is the source of military jurisdic- 
 tion in the United States? 
 
 The Constitution. 
 
 From what sources is Military Law de- 
 rived? 
 
 It is derived from both written and un- 
 written sources. 
 
 What are the written sources of Military 
 Law? 
 
 The Articles of War, enacted by Con- 
 gress, August 29, 1916. 
 
 2. Statutory enactments relating to the 
 military service. 
 
 3. The Army Regulations. 
 
 4. The General and Special Orders, and 
 decisions promulgated by the War De- 
 partment and by department, post and 
 other commanders. 
 
 What is the source of the unwritten mili- 
 tary law? 
 
 The custom of war, consisting of the 
 customs of the service both in peace and 
 war. 
 
 What are the three kinds of Military 
 Tribunals? 
 
 \. Military Commissions and Provost 
 Courts, for the trial of offenders 
 against the laws of war and under 
 Martial Law. 
 
 2. Courts-Martial — General, Special and 
 Summary — for the trial of offenders 
 against military law. 
 
 3. Courts of Inquiry, for the examina- 
 tion of transactions of, or accusations 
 or imputations against, officers and 
 soldiers. 
 
 What persons are subject to Military Law? 
 
 \. All officers and soldiers belonging to 
 the regular army of the Uited 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 
 
 31 
 
Night Operations 
 
 of the call, draft, or order to obey the 
 same. 
 
 2. Cadets. 
 
 3. OflRcers and soldiers of the Marine 
 Corps, when detached for service with 
 the armies of the United States, by 
 order of the President. 
 
 4. Officers and men of the Medical De- 
 partment of the Navy, serving with a 
 body of Marines detached for service 
 with the Army, in the same manner as 
 officers and men of the Marine Corps 
 who may be so serving. 
 
 5. All retainers to the camp and all per- 
 sons accompanying or serving with the 
 armies of the United Statesy outside of 
 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 other- 
 wise subject to the Articles of War. 
 
 6. All persons under sentence adjudged 
 by courts-martial. 
 
 7. Army field clerks. 
 
 8. Field Clerks, Quartermaster Corps. 
 Q. What are the several kinds of courts-mar- 
 tial in the United States service? 
 
 A. 1. The General court-martial. 
 
 2. The Special court-martial. 
 
 3. Th6 Summary court-martial. 
 
 Q. Who may be detailed as members of a 
 court-martial? 
 
 A. 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. 
 
 Q. What are the exceptions? 
 
 A. 1. No officer may sit as a member of a 
 general or special court-martial when 
 he is the accuser or a witness for the 
 prosecution. 
 2. Chaplains, veterinarians, dental sur- 
 geons, and second lieutenants in the 
 Quartermaster Corps are not in prac- 
 tice detailed as members of courts- 
 martial. 
 
 Q. What is the composition of a general 
 court-martial? 
 
 A. It may consist of any number of officers 
 from 5 to 13, inclusive. 
 
 3. What is the minimum number that may 
 continue to transact business? 
 
 A. Five. 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 prelimi- 
 nary to the organization and action of 
 the court 
 
 Q. What action is taken when the court is 
 reduced below five? 
 
 A. It will direct the judge advocate to re- 
 port the facts to the convening author- 
 ity, and await his orders. 
 
 Q. What is the composition of a special 
 court-martial? 
 
 A. It consists of any number of officers from 
 three to five, inclusive. When the mem- 
 bers are reduced below three, a report 
 of the fact will be made by the judge 
 advocate to the convening authority, 
 who will detail enough officers to en- 
 able the court to proceed. 
 
 Q. What is the composition of a summary 
 court-martial? 
 
 A. It consists of one officer. 
 
 Q. Under what conditions may retired of- 
 ficers of the Army be detailed as mem- 
 bers of courts-martial? 
 
 A. 1. When, in time of peace, they are as- 
 signed to active duty with their own 
 consent. 
 
 2. When, in time of war, they are em- 
 ployed on active duty in the discretion 
 of the President. 
 
 3. At other times they are not available 
 for court-martial duty. 
 
 Q. Under what conditions are members of 
 the Officers' Reserve Corps available 
 for court-martial duty? 
 
 A. When they are ordered to active service 
 by the Secretary of War. 
 
 Q. Under what circumstance may officers of 
 the Regular Army and officers of the 
 Marine Corps serve on courts-martial 
 together? 
 
 A. When troops of the Marine Corps are 
 detached, by order of the President, 
 for service with the Army. 
 
 Q. Is there any distinction between officers 
 of the regular service and other of- 
 ficers with reference to their eligibility 
 for duty as members of a court-mar- 
 tial? 
 
 A. No distinction now exists for the trial 
 of any person subject to military law 
 in the matter of eligibility for court- 
 martial duty among the various classes 
 
Night Operations 
 
 33 
 
 of officers in the military service of 
 the United States. 
 
 Q. May an officer be tried by officers junior 
 to him in rank? 
 
 A. In no case, when it can be avoided, shall 
 an officer be tried by officers junior to 
 him in rank. This provision is not 
 mandatory upon the convening author- 
 ity. Its effect is to leave to that of- 
 ficer — ^as the final authority to judge — 
 the determination of rank of the mem- 
 bers, with only the general instruction 
 that seniors in rank to the accused shall 
 be selected, as far as the exigencies 
 and interests of the service will permit. 
 
 Q.. What officers are empowered to appoint 
 general courts-martial t 
 
 A. 1. The President of the United States. 
 
 2. The commanding oflScer of a terri- 
 torial division. 
 
 3. The commanding officer of a terri- 
 torial department. 
 
 4. The Superintendent of the Military 
 Academy. 
 
 5. The commanding officer of an army. 
 
 6. The commanding officer of an army 
 corps. 
 
 7. The commanding officer of a tactical 
 division. 
 
 8. The commanding officer of a separate 
 brigade. 
 
 9. The commanding officer of any dis- 
 trict or any force or body of troops, 
 when empowered by the President to 
 do so. 
 
 Q. When the person having the authority to 
 appoint a court-martial is the accuser, 
 ■what action is taken? 
 
 A. The court is appointed by a higher com- 
 petent authority. 
 
 Q. May officers be tried before courts-mar- 
 tial appointed by the Superintendent of 
 the Military Academy? 
 
 A. They may not. 
 
 Q. Under what authority may the Presi- 
 dent institute a general court-martial? 
 
 A. 1. As commander-in-chief of the Army. 
 
 2. When the accuser is the superior of- 
 ficer of the army, and the law requires 
 the next higher commander to appoint 
 the court. 
 
 3. In the particular cases provided in 1230 
 of the Revised Statutes. 
 
 Note. — When an officer, dismissed by order 
 of the President, makes a written applica- 
 
 tion for trial, setting forth under oath that 
 he has been wrongfully dismissed, the Presi- 
 dent 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 appli- 
 cation for trial, or if such court, being con- 
 vened, 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.) 
 
 Q. What authority has the appointing of- 
 ficer over a court-martial? 
 A. He may control its existence, dissolve it 
 and determine the cases to be referred 
 to it for trial, but he can not control 
 the court in the exercise of powers 
 vested in it by law. 
 Q. What authorities may appoint a special 
 
 court-martial? 
 A. 1. The commanding officer of a district. 
 
 2. The commanding officer of a garrison. 
 
 3. The commanding officer of a fort. 
 
 4. The commanding officer of a camp. 
 
 5. The commanding officer of any place 
 where troops are on duty. 
 
 6. The commanding officer of a brigade. 
 
 7. The commanding officer of a regiment. 
 
 8. The commanding officer of a detached 
 battalion. 
 
 9. The commanding officer of any de- 
 tached command. 
 
 Q. May a commanding officer appoint him- 
 self as a member of a special court- 
 martial? 
 
 A. He may not. 
 
 Q. What authorities may appoint a sumr 
 mary court? 
 
 A. Any commanding officer. 
 
 Q. When there is only one officer on duty 
 with a command what action is taken 
 with reference to the appointment of a 
 summary court officer? 
 
 A. When but one officer is present with a 
 command, he is the summary court of- 
 ficer of that command and shall hear 
 and determine cases brought before 
 him. In such case no order appointing 
 the court will be issued, but the officer 
 will enter on the record that he is " the 
 only officer present with the command." 
 
 0. Who has power to appoint the judge ad- 
 vocate of a court-martial? 
 
34 
 
 Night Operations 
 
 A. The officer empowered to appoint the 
 court. 
 
 Q. From what ultimate source does the court- 
 martial derive its existence? 
 
 A. From Congress. 
 
 Q. To what class of cases is the jurisdiction 
 of the court-martial limited. 
 
 A. Its jurisdiction is limited to criminal 
 cases. 
 
 Q. Are the decisions of courts-martial sub- 
 ject to review f 
 
 A. They are not subject to review by any 
 courts whatsoever. The United States 
 Courts may, on writ of habeas corpus, 
 inquire into the legality of the deten- 
 tion of a person held by military 
 authority. Such inquiry may be made 
 at any time, either before or during 
 trial, or while sentence is being served, 
 and the court will order such person 
 discharged if it appears to the satis- 
 faction of the court that any of 
 the statutory requirements conferring 
 jurisdiction have not been fulfilled. 
 
 Q. What action is necessary to legalize the 
 action of a court-martial T 
 
 A. The approval, or confirmation, of the 
 proper commanding officer. With such 
 approval or confirmation, sentences of 
 courts-martial become operative, are as 
 effective as the sentences of civil courts 
 having criminal jurisdiction, and are 
 entitled to the same legal considera- 
 tion. 
 
 Q. What conditions must obtain as to the 
 legal jurisdiction of a court-martial 
 and the validity of its judgments? 
 
 A. It must be shown: 
 
 1. That it was convened by an officer em- 
 powered by statute to convene it. 
 
 2. That the persons who sat on the court 
 were legally competent to do so. 
 
 3. That the court thus constituted was in- 
 vested by the acts of Congress with the 
 power to try the person and the offense 
 charged. 
 
 4. That its sentence was in accordance 
 with the law. 
 
 Q. What is the rule of procedure when 
 courts-martial and civil courts have 
 concurrent jurisdiction? 
 
 A. In accordance with the principle of 
 comity, as between the military and 
 civil tribunals, in cases of concurrent 
 jurisdiction the court which first at- 
 
 taches in a particular case is entitled 
 to proceed to its termination. 
 
 Q. What is the procedure when a court-mar- 
 tial has duly assumed jurisdiction over 
 an offence and over the person com- 
 mitting it, and is divested of that juris- 
 diction by a wrongful act of the ac- 
 cused? 
 
 A. A court-martial having once assumed 
 jurisdiction of a case, can not be di- 
 vested, by any wrongful act of the ac- 
 cused, of its authority or be discharged 
 from its duty to proceed to fully try 
 and determine according to law and its 
 oath. Thus, the fact that the accused, 
 after arraignment and during the trial, 
 has escaped from military custody fur- 
 nishes no ground for not proceeding 
 to a finding and, in the event of con- 
 victioni to a sentence in the case; the 
 court may and should find and sentence 
 as in any other case. 
 
 Q. What are the exceptions to the rule that 
 military jurisdiction terminates when a 
 person is legally separated from the 
 service? 
 
 A. 1. Persons guilty of fraud against the 
 United States. 
 
 2. Under Section 1230 Revised Statutes 
 (see ante.). 
 
 3. Persons serving sentence of a court- 
 martial. 
 
 4. Where a discharge is secured by fraud. 
 
 5. Desertion in previous enlistment. 
 Note. — For an offence committed prior to 
 
 the expiration of his term of enlistment, a 
 soldier may be held in the service and tried 
 after the expiration of his term. So, also, a 
 soldier may be tried for offences committed 
 while making up time lost by desertion; 
 through absence without leave; through dis- 
 ease or injury, the result of his own mis- 
 conduct. 
 
 Q. Over what persons and offences do gen- 
 eral courts-martial have jurisdiction? 
 A. 1. Any person subject to military law; 
 for any crime or offence made punish- 
 able by the Articles of War. 
 2. Any person other than (1) above, who 
 by the law of war is subject to trial by 
 military tribunals; for any crime or 
 offence in violation of the law of war, 
 Q. What limits are placed on the punishing 
 power of a general court-martial? 
 
Night Operations 
 
 35 
 
 A. Punishment is discretionary with a gen- 
 eral court-martial except: 
 
 (a) When mandatory under the law. 
 
 (b) When limited by order of the 
 
 President, under the 4Sth Arti- 
 cle of War. 
 
 (c) That the death penalty can be 
 
 imposed, only when specifically 
 
 authorized. 
 Q. Name some of the mandatory sentences? 
 A. 1. The death sentence is mandatory in 
 the case of spies. 
 
 2. Dismissal is mandatory for conduct un- 
 becoming an officer and a gentleman. 
 
 3. Either death or imprisonment is man- 
 datory for murder or rape. 
 
 Q. Over what persons and offences do spe- 
 cial courts-martial have jurisdiction? 
 A. 1. Any person subject to military law, ex- 
 cept: 
 
 (o) An officer. 
 
 (6) Any person subject to military 
 law and belonging to a class 
 or classes excepted by the 
 President. 
 2. Any crime or offence — ^not capital — 
 made punishable by the Articles of 
 War. 
 Note. — ^Under (b), cadets and soldiers 
 holding certificates of eligibility for promo- 
 tion are excepted from the jurisdiction of 
 special courts-martial. 
 Q. What are the capital crimes under the 
 
 Articles of Warf 
 A. 1. Peace offences : 
 
 (o) Assaulting or disobeying a su- 
 perior officer. 
 (6) Mutiny or sedition, 
 (c) Failure to suppress mutiny or 
 sedition. 
 2. War offences : 
 (o) Desertion. 
 (6) Advising or aiding another to 
 
 desert, 
 (c) Misbehavior before the enemy. 
 id) Subordinates compelling a com- 
 mander to surrender, 
 (e) Improper use of countersign. 
 (/) Forcing a safeguard. 
 {g) Relieving, corresponding with, 
 
 or aiding the enemy. 
 (A) Spies. 
 
 (0 Misbehavior of sentinel. 
 Q. What is the limit of the punishing power 
 of a special court-martial? 
 
 A. 1. Confinement for six months. 
 2. Forfeiture of pay for six months. 
 Note. — They can not adjudge dishonorable 
 discharge. Reduction of noncommissioned 
 officers to the ranks and reduction of pri- 
 vates in grade may be adjudged in addition 
 to the above. 
 
 Q. Over what persons and offences do suwr- 
 mary courts-martial have jurisdiction? 
 A. 1. Any person subject to military law, 
 except : 
 
 (a) An officer. 
 (&) A cadet. 
 
 (c) A soldier holding a certificate of 
 
 eligibility for promotion. 
 
 (d) A noncommissioned officer who 
 
 objects to trial. (Except when 
 ordered by an officer compe- 
 tent to bring him to trial be- 
 fore a general court-martial.) 
 (?) Any person belonging to a class 
 or classes of persons excepted 
 by the President from the 
 jurisdiction of the summary 
 coiu-t-martial. 
 2. For any crime or offence — not capi- 
 tal—made punishable by the Articles of 
 War. 
 Q. What are the limits of punishment of a 
 
 summary court-martial? 
 A. 1. Confinement for three months. 
 2. Forfeiture of three months' pay. 
 Note. — Reduction to the ranks in the case 
 of noncommissioned officers, etc. See note, 
 second question above. 
 Q. What restrictive action is taken against an 
 
 officer charged with an offence? 
 A. An officer charged with crime or a seri- 
 ous offence against the Articles of War 
 shall be placed in arrest by the com- 
 manding officer, and, in exceptional 
 cases, an officer so charged may, by the 
 same authority, be placed in confine- 
 ment. 
 Q. What restrictive action is taken against a 
 
 soldier charged with an offence? 
 A. 1. A soldier charged with crime or a 
 serious offence against the Articles of 
 War shall be placed in confinement; 
 when charged with a minor offence, he 
 may be placed in arrest. 
 Note. — In practice, the general rule ob- 
 served is : if a soldier is to be tried by a gen- 
 eral court-martial, he will be placed in con- 
 
36 
 
 Night Operations 
 
 finement ; if he is to be tried, by an inferior 
 
 court, he is placed in arrest. 
 
 Q. Does the fact that a person charged with 
 
 an offence has not been placed in arrest 
 
 or confinement affect the jurisdiction 
 
 of the court? 
 A. It does not. 
 Q. In whom is vested the power of placing 
 
 officers in arrest f 
 A. Only commanding officers, except as 
 
 provided for in the 68th Article of 
 
 War: 
 
 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 
 therewith . . . 
 
 Q. How is the arrest of an officer effected? 
 
 A. He may be 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, will con- 
 sider himself in arrest, or words to that 
 effect. 
 
 Q. What is the official and social status of 
 an officer in arrest? 
 
 A. 1. He cannot exercise command of any 
 kind. 
 
 2. He will not wear his sword. 
 
 3. He will not visit officially his com- 
 manding officer or other superior of- 
 ficer unless directed to do so. 
 
 4. His applications and requests of every 
 nature will be made in writing. 
 
 Q. What is the rule in regard to placing 
 medical officers in arrest? 
 
 A. In ordinary cases, where inconvenience 
 to the service would result, a medical 
 officer will not be placed in arrest un- 
 til the court-martial convenes for his 
 trial. 
 
 Q. What action is necessary in placing a 
 soldier in confinement? 
 
 A. Except as provided in the A. W. 68 
 (ante), or when restraint is neces- 
 sary, no soldier will be confined with- 
 out the order of an officer, who shall 
 previously inquire into his offence. It 
 
 is proper, however, for a company com- 
 mander to delegate to the noncommis- 
 sioned officers of his company the 
 power to place enlisted men in arrest 
 when restraint is necessary, but such 
 action must be reported at once to the 
 company commander. 
 
 Q. What is the status of noncommissioned 
 officers in arrest? 
 
 A. They will not be called upon to per- 
 form any duty in which they may be 
 called upon to exercise authority or 
 control over others. When placed in 
 confinement, they will not be sent out 
 to work. 
 
 Q. Who may arrest deserters from the mili- 
 tary service? 
 
 A. Any civil officer having authority under 
 the laws of the United States or of 
 any State, Territory, district or pos- 
 session of the United States. 
 Any citizen, under an order or by direc- 
 tion of a military officer. 
 
 Q. What is a military charge? 
 
 A. A military charge corresponds to a civil 
 indictment. It consists of two parts — 
 the technical charge and the specifica- 
 tion. The former alleges the offence in 
 general terms, and the latter sets forth 
 the facts constituting the same. 
 
 Q. What requirement must a charge fulfil? 
 
 A. It must be laid under the proper Arti- 
 cle of War or other statute. 
 
 Q. What requirements must the specification 
 fulfil? 
 
 A. It must set forth in simple and conr 
 cise language facts sufficient to consti- 
 tute the particular offence ; and in such 
 manner as to enable a person of com- 
 mon understanding to know what is 
 intended. 
 
 Q. Who may prefer charges? 
 
 A. Any officer. This includes officers of the 
 Army on the retired list and those of 
 the Officers' Reserve Corps in active 
 service. An officer is not disqualified 
 by reason of the fact that he himself 
 is under charges or in arrest. 
 
 Q. What is the rule regarding the number- 
 ing of charges and specifications? 
 
 A. Where there are several specifications 
 under one Article of War the usual 
 manner is to place them all under one 
 charge, rather than to make several 
 charges with one specification under 
 
Night Operations 
 
 37 
 
 each. Where there are several speci- 
 fications under one charge they will 
 be consecutively numbered, and where 
 there are several charges, the same will 
 be consecutively numbered. 
 Q. To what statements should a charge be 
 
 limited? 
 A. To a designation of the Article of War 
 
 violated. 
 Q. What elements should a specificatioin con- 
 tain? 
 A. 1. The name, rank, title, and organiza- 
 tion of the accused person, if he be- 
 longs to the Army of the United States, 
 should be stated. If the accused is a 
 civilian, he should be so described as 
 to establish the fact that he is subject 
 to trial by military tribunals. 
 2. The facts constituting the offence 
 charged will be set forth briefly but 
 clearly, together with the place and 
 time of commission. Care should be 
 taken that all the elements of the of- 
 fence as described in the Article of 
 War, or the other statute, are set forth. 
 The specification must be appropriate 
 to the charge. 
 Q. What is the routine procedure in pre- 
 paring and forwarding charges against 
 an enlisted man? 
 <A. All charges, for trial by court-martial, 
 will be prepared in triplicate. The pre- 
 scribed charge-sheet will be used as a 
 first sheet, ordinary paper being used 
 for such additional sheets as may be 
 necessary. 
 They will be accompanied: 
 
 (a) Except when the trial is to be 
 had by summary court, by a 
 brief statement of the testi- 
 mony expected from each ma- 
 terial witness, both for the 
 prosecution and for the de- 
 fence, together with all avail- 
 able and necessary informa- 
 tion as to any other actual or 
 probable testimony or evidence 
 in the case; and 
 (fc) In the case of a soldier, by 
 properly authenticated evidence 
 of convictions, if any, during 
 the preceding year of his cur- 
 rent enlistment. 
 
 The charges are forwarded 
 by the ofllicer preferring them 
 
 to the officer exercising sum- 
 mary court-martial jurisdic- 
 tion over the command to 
 which the accused belongs who 
 will refer them to a court-mar- 
 tial in his jurisdiction for trial, 
 or forward them to the next 
 superior authority exercising 
 court-martial jurisdiction over 
 the command to which the ac- 
 cused belongs or pertains. 
 
 (c) When trial is to be had by sum- 
 
 mary court, the completed 
 charges become the record of 
 trial. A copy will be com- 
 pleted and sent to the company 
 or other commander. A second 
 copy will be completed and 
 forwarded to the officer exer- 
 cising general court-martial 
 jurisdiction over the command. 
 
 (d) When trial is had by special or 
 
 general court-martialv two 
 copies of the charges will be 
 referred to the trial judge-ad- 
 vocate, one copy to be fur- 
 nished by him to the accused. 
 The third copy will be used 
 for purposes of record in the 
 office of the officer appointing 
 the court. 
 Q. What investigation is made before charges 
 for trial by general court-martial are 
 forwarded? 
 A. The officer exercising summary court- 
 martial jurisdiction over the command 
 to which the accused pertains either 
 carefully investigates the case himself 
 or causes an officer other than the of- 
 ficer preferring the charges to investi- 
 gate them carefully and report to him 
 the result of such investigation. The 
 ofiicer investigating the charges will af- 
 ford 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 accusation 
 against him. 
 Q. What elements must be included in the 
 endorsement by which charges are for- 
 warded to superior authority? 
 A. 1. The name of the officer who investi- 
 gated the charges. 
 2. The opinion of such officer as to 
 
38 
 
 Night Operations 
 
 whether the several charges can be sus- 
 tained. 
 
 3. The substance of the statement, if any, 
 that the accused may voluntarily make 
 in connection with the case. 
 
 4. A summary of the extenuating circum- 
 stances, if any, connected with the 
 case. 
 
 5. His recommendation as to the action 
 to be taken. 
 
 Q. What period is allowed the accused to 
 
 prepare for his defence? 
 A. Five days. 
 Q. What is the procedure of a General 
 
 Court-Martial? 
 A. The following is the order of institution 
 
 and procedure of a General Court- 
 
 Martial : 
 
 1. The order instituting the court is 
 issued from the headquarters of the 
 officer competent to appoint a general 
 court-martial. The body of this order 
 designates the date, hour, and place 
 where the court is to meet ; details the 
 members of the court by rank, name, 
 and organization in the order of their 
 relative rank; details the judge advo- 
 cate of the court by his rank, name and 
 organization; and authorizes the ap- 
 pointment of a stenographic reporter 
 and the necessary travel. 
 
 2. The members of the court assem- 
 ble at the place and hour designated in 
 the order for the first session of the 
 court. Thereafter, they meet in accord- 
 ance with the adjournment, which is 
 usually " to meet at the call of the presi- 
 dent." When the court is detailed to 
 try a number of cases this procedure is 
 usually modified by having the first 
 meeting on notice by the president, 
 through the judge advocate, that there 
 is business to be transacted. 
 
 The members of the court wear the 
 uniform prescribed by the president 
 (usually dress), and sabers. The judge 
 advocate, the accused and his counsel 
 wear the same uniform as the court, 
 without side arms. Military witnesses 
 wear the uniform of the court, with 
 side arms. When an enlisted man is 
 tried for desertion, he appears before 
 the court in the dress that he wore at 
 the time of his apprehension or sur- 
 render. 
 
 3. When the court is ready to pro- 
 
 ceed, the members take seats at a table 
 provided for the purpose. The presi- 
 dent sits at the head of the table. The 
 other members at his right and left, 
 alternately, according to relative rank. 
 The judge advocate sits at the foot of 
 the table or at a separate table. The 
 accused and his counsel sit at a table 
 conveniently placed. A witness, when 
 testifying, is seated near the judge ad- 
 vocate, and the reporter is placed near 
 the witness' chair. The interpreter is 
 located at a convenient place (see 
 figure). 
 
 4. After the members of the court are 
 seated, the judge advocate calls the 
 roll, using the order instituting the 
 court, after which he announces the 
 result to the president as : Sir, all are 
 present, or so and so is absent, stat)- 
 ing the cause or authority for the ab- 
 sence if it is known. The president 
 directs the judge advocate : " Proceed 
 with the business of the court." 
 
 5. The judge advocate then causes 
 the accused, his counsel, the reporter, 
 and interpreter to enter the court room 
 and, while he and they remain stand- 
 ing, announces: The judge advocate is 
 prepared to proceed with the case of the 
 United States versus Private John Doe, 
 Company " K," 48th Infantry. 
 
 The president announces: // there is 
 no objection, the court will proceed to 
 the trial of Private Doe. 
 
 The judge advocate announces : The 
 accused desires to introduce First Lieu- 
 tenant William Williams, 48th Infantry, 
 as his counsel, or, in case the accused 
 does not desire counsel, the judge ad- 
 vocate states : The accused states that 
 he does not desire counsel. 
 
 6. The reporter of the court is then 
 sworn by the judge advocate, admin- 
 istering the following oath, both stand- 
 ing: You swear {or aMrm) that you 
 will faithfully perform the duties of re- 
 porter to this court. So help you God. 
 
 6a. The judge advocate asks the ac- 
 cused if he desires a copy of the record 
 of his trial, and gives the reporter the 
 necessary instructions. 
 
 7. The judge advocate and the ac- 
 cused stand up. The judge advocate 
 reads aloud to the accused the order 
 convening the court, and together with 
 
Night Operations 
 
 39 
 
 any other orders modifying the detail, 
 and states to the accused: Of the of- 
 ficers named in this order (or these 
 orders), the following are present 
 (names the officers of the court pres- 
 ent). Have you any objection to being 
 tried by any officer present? This is 
 known in military law as "the right 
 of challenge." 
 
 of the accused: The accused objects to 
 Captain Jones, on the ground that 
 {stating the grounds upon which the 
 objection is based). The challenged 
 member is then given an opportunity to 
 make a statement in reply to th^e 
 challenge. 
 Note. — A positive declaration by the chal- 
 lenged member that he is not prejudiced 
 
 PRESIDENT 
 
 MEMBER NO.S O 
 MEMBER N0.7 O 
 MEMBER NO.9 
 
 ACCUSED 
 
 o 
 
 COUNSEL 
 
 o 
 
 o 
 
 REPORTER 
 
 o 
 
 JUDGE ADVOCATE 
 
 o 
 
 o 
 
 Note. — Members of a general or special 
 court-martial may be challenged by the ac- 
 cused or by the judge advocate, but only for 
 cause stated to the court. The court deter- 
 mines the relevancy and validity thereof, and 
 does not receive a challenge to more than 
 one member at a time. (18th Article of 
 War.) 
 
 Should the accused object to being 
 tried by any member of the court pres- 
 ent, the counsel would state in behalf 
 
 WITNESS 
 INTERPRETER 
 
 against the accused, nor interested in the case, 
 is ordinarily satisfactory to the accused. 
 
 If the statement is not satisfactory to 
 the accused, he may at this time state: 
 I am not satisfied with the statement of 
 Captain Jones and request that he be 
 put upon his voir dire. The judge ad- 
 vocate and the challenged member 
 standing, the judge advocate adminis- 
 ters the following oath to him: You 
 swear that you will true answers make 
 
40 
 
 Night Operations 
 
 to questions touching upon your com- 
 petency as a member of the court in this 
 case. So help you God. The member 
 is then examined by the accused (gen- 
 erally through his counsel), in the same 
 manner that a juror is examined in 
 criminal courts. Upon the completion 
 of this examination the president an- 
 nounces : The court ■mil be closed. 
 
 8. The challenged member, the ac- 
 cused and his counsel, and spectators, if 
 any; the judge advocate, the reporter, 
 the interpreter, withdraw from the 
 court room and the court is said to be 
 " closed." The remaining members of 
 the court deliberate upon the question 
 as to whether or not the challenged 
 member shall sit as a member of the 
 court in the case. They arrive at a de- 
 cision by vote, beginning with the junior 
 member, the majority carrying the de- 
 cision. 
 
 Note. — Courts are liberal in passing upon 
 challenges and, when there is any valid rea- 
 son given, sustain them. 
 
 Having arrived at a decision, the 
 president announces that the court is 
 opened and the judge advocate is so 
 notified. This is generally done by 
 ringing a bell. 
 
 9. Those who withdrew now enter 
 the court room and take their places 
 and the president announces the de- 
 cision of the court as : The objection to 
 Captain Jones is sustained, and he will 
 be excused as a member of the court in 
 this case, or The objection to Captain 
 Jones is not sustained and he will sit as 
 a member of the court in this case. 
 
 If the challenged member be excused, 
 he will immediately withdraw. All 
 members of the court junior to him in 
 rank will change their seats so as to 
 preserve the prescribed arrangement of 
 the court according to rank. 
 
 The judge advocate then interrogates 
 the accused : Have you any objection to 
 any other member of the court, present? 
 Should the accused have objection, he 
 will challenge the member objected to 
 and the same procedure as above will 
 be observed. If he does not object to 
 any other member he will state : There 
 is no further objection. The judge ad- 
 vocate may now in like manner chal- 
 lenge any member of the court. 
 
 Should any member of the court be- 
 lieve himself to be the accuser in the 
 case, he will at this point formally an- 
 nounce that fact to the court, where- 
 upon he will be excused. When the 
 judge advocatei, the accused, his coun- 
 sel, or any member of the court has 
 reason to believe that any member 
 thereof may be called as a witness for 
 the prosecution, such belief shall be 
 communicated to the court and, if the 
 judge advocate states that the member 
 is to be called, he will be excused. 
 When there are no further challenges 
 to be considered by the court, the presi- 
 dent announces : The court will be 
 sworn. 
 
 10. All the members of the court, the 
 judge advocate and all other persons 
 in the court room stand, and the fol- 
 lowing oath is administered by the 
 judge advocate — who holds right hand 
 uplifted — to the members of the court: 
 You (naming each member of the court 
 present) 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 af- 
 fection, 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 explained by said articles, then ac- 
 cording to your conscience, the best of 
 your understanding, and the custom of 
 war in like cases, and you do further 
 swear {or aiKrm) that you will not di- 
 vulge the findings or sentence of the 
 court until they shall be punished by the 
 proper authority, except to the judge ad- 
 vocate and assistant judge advocate; 
 neither will you disclose or discover the 
 vote or opinion of any particular mem- 
 ber 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. 
 
 As the name of each member of the 
 court is called he raises his right hand 
 and retains it in that position until the 
 reading of the oath is completed and 
 acknowledged. 
 
 While all remain standing, the presi- 
 
Night Operations 
 
 41 
 
 dent of the court administers the fol- 
 lowing oath to the judge advocate: You 
 (naming the judge advocate) do swear 
 (or afUrm) 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. 
 
 Upon completion of the swearing of 
 the court and the judge advocate, the 
 court is said to be organized. 
 
 11. At this point, if there is an in- 
 terpreter, he is sworn by the judge ad- 
 vocate — ^both standing — with the follow- 
 ing oath: You swear (or afHrni) that 
 you will truly interpret in the case now 
 in hearing. So help you God. 
 
 12. If a delay in the case is necessary, 
 either on the part of the prosecution or 
 the defence, it should be made at this 
 time. 
 
 13. The judge advocate then reads the 
 charges and specifications preferred 
 against the accused and the accused is 
 called upon to plead to them. In case 
 of several charges and specifications, 
 the order pursued is to arraign on the 
 first, second, etc., specifications to the 
 first charge, then on the first charge, 
 and so on with the rest. During the 
 reading of the charges the judge advo- 
 cate and the accused stand. The judge 
 advocate puts the question to the ac- 
 cused after the reading of each specifi- 
 cation and charge: How plead you? 
 All of this constitutes the arraignment. 
 
 14. The accused is called upon to 
 plead to each charge and specification. 
 Ordinarily the plea of the accused is 
 guilty or not guilty to each charge and 
 specification; or, guilty of a specifica- 
 tions excepting certain words, and of 
 the excepted words not guilty; or when 
 charged with an offence which includes 
 a lesser one of kindred degree, guilty 
 of the specification except certain 
 words, substituting certain other words, 
 and to the charge not guilty, but guilty 
 of the lesser kindred offense. 
 
 For example : in a trial for desertion, 
 the accused, by substituting words in 
 the specification that covers the offence 
 of absence without leave, may plead 
 guilty to them, but not guilty to the 
 part of the specification that covers de- 
 sertion. In the charge, he may substi- 
 
 tute : as not guilty of desertion but 
 guilty of absence without leave. 
 
 The pleas are generally entered by the 
 counsel on behalf of the accused. If 
 the accused questions the jurisdiction 
 of the court he may here enter a plea 
 to the jurisdiction, or, if any other plea 
 is appropriate, it must be entered at this 
 time. For example: a plea in abate- 
 ment, or a plea in bar of trial. 
 
 15. Should the accused plead guilty, 
 the president of the court will halt the 
 proceedings and explain to the ac- 
 cused the meaning of such a plea, ask 
 him if he understands the same, and 
 question him to such extent that there 
 can be no misunderstanding of the 
 action he has taken in pleading guilty. 
 He will explain to the accused the 
 penalty that the court may impose for 
 such an offence and make certain that 
 the accused fully understands it. 
 
 16. The prosecution, conducted by the 
 judge advocate, then begins the pres- 
 entation of the case. The judge advo- 
 cate announces: The judge advocate 
 desires to introduce (naming the wit- 
 ness) as a witness for the prosecution. 
 The witness enters. The judge advo- 
 cate directs him to hold up his right 
 hand. (If he is wearing gloves, the 
 judge advocate directs him to remove 
 the right-hand glove). The following 
 oath is administered by the judge advo- 
 cate, both he and the witness standing : 
 You swear or affirm that the evidence 
 that you shall give in the case now in 
 hearing shall be the truth, the whole 
 truth, and nothing but the truth. Sc 
 help you God. 
 
 The judge advocate directs the wit- 
 ness to be seated in the witness chair 
 and cautions him to speak slowly and 
 distinctly to the court in order that all 
 may hear what he has to say. The 
 judge advocate then proceeds to the di- 
 rect examination of the witness, in the 
 case of a military witness, by asking: 
 State your name, rank, organization 
 and station, or in the case of a civilian 
 witness. State your name and residence 
 Then follows the identification of the 
 accused : Do you know the accused? If 
 so, state who he is. 
 
 Then follow any other questions 
 that the judge advocate desires to ask 
 
42 
 
 Night Operations 
 
 the witness in the prosecution of the 
 case. 
 
 17. At the conclusion of the direct 
 examination, the judge advocate an- 
 nounces that fact and the witness is 
 turned over to the defence for the cross- 
 examination by the counsel for the 
 accused. The judge advocate is then 
 given an opportunity to re-examine the 
 witness and the defense to re-cross- 
 examine the witness. At the conclusion 
 of all this the president inquires : Ques- 
 tions by the members of the court f and 
 the members of the court are then per- 
 mitted to ask any questions they desire. 
 Upon the completion of this, the wit- 
 ness is excused. 
 
 18. Should a question be asked of a 
 witness, either by the prosecution or by 
 the defence, to which objections is 
 made by the opposite party in the case, 
 the party objecting will announce, be- 
 fore the witness has had an opportun- 
 ity to answer : / object to that question, 
 after which he states the grounds upon 
 which the objection is based. The op- 
 posite party is then given an oppor- 
 tunity to reply to the objection and, 
 after all conversation on the matter 
 has been concluded, the president an- 
 nounces: The court will be closed. All 
 persons in the court .room, other than 
 the members of the court, will with- 
 draw. The court deliberates the ques- 
 tion and a vote is taken on the subject, 
 starting with the junior member of 
 the court. The majority rules. If 
 there is a tie vote, the proposition is 
 lost. The president announces: The 
 court is opened. Those who withdrew 
 are recalled, as indicated in paragraph 
 8. The president announces : The ob- 
 jection is sustained, and the question 
 will not be answered, or, The objection 
 is not sustained, and the witness will 
 proceed to answer the question. In the 
 latter case the question is again asked 
 and the witness required to answer. 
 
 19. After all the witnesses for the 
 prosecution have been examined the 
 judge advocate will introduce any docu- 
 mentary evidence he may have to place 
 before the court for its consideration. 
 Documentary evidence may be intro- 
 duced at any time, though the rule is 
 
 that it will be introduced at the con- 
 clusion of the examination of the wit- 
 nesses for one side or the other. 
 
 After the judge advocate has con- 
 cluded his side of the case for the gov- 
 ernment he announces: The prosecu- 
 tion here rests. The witnesses for the 
 defence are then called as indicated 
 by the counsel for the accused and 
 their examination proceeds as for 
 those of the prosecution. The counsel 
 for the accused conducts the direct ex- 
 amination and the judge advocate the 
 cross-examination. The defence then 
 submits any documentary evidence that 
 it desires considered and, when there 
 is nothing further, the counsel an- 
 nounces: The accused desires to be 
 sworn as a witness in his own behalf, 
 or. The accused desires to make a 
 verbal statement in his own behalf, or, 
 The accused desires to submit a writ- 
 ten statement in his own behalf. In 
 the first case, where the accused is 
 sworn as a witness in his own behalf, 
 he is examined by the counsel for the 
 defence and is subject to cross-exam- 
 ination by the judge advocate and to 
 questions by members of the court. In 
 the second case the accused merely 
 makes a verbal statement to the court, 
 which is unsworn, and may be taken 
 for what it is worth; in the third case 
 the accused submits a written state- 
 ment to the court which is read by 
 the judge advocate and appended to the 
 record of the court as a part of the 
 record in the case. 
 
 20. Following this, the counsel for the 
 defence is given an opportunity to make 
 a summing up of the case and an argu- 
 ment for the accused. This is followed 
 by the action of the judge advocate 
 who may make answer to the argument 
 of the defence. In case the judge 
 advocate has nothing further, he an- 
 nounces : The judge advocate submits 
 the case without remark. In any 
 event, the judge advocate, on behalf 
 of the government, has the last word 
 in the case. The president announces: 
 The court will be closed. 
 
 21. All persons in the court room 
 withdraw except the members of the 
 court, who proceed to a finding in the 
 
Night Operations 
 
 43 
 
 case. After deliberating over the case 
 to such extent as may be necessary and 
 discussing it to the extent desired by the 
 members, the president announces : In 
 the absence of objection, we will pro- 
 ceed to vote on a finding in this case. 
 
 The president reads, or causes to be 
 read, the first specification and then 
 calls upon each member, starting with 
 the junior, to register his vote on the 
 finding. The remaining specifications 
 to a charge are taken up in their order 
 and each voted on . in like manner. 
 Then, the charge is voted on. The mem- 
 bers register their votes : guilty or, not 
 guilty, or, sustain the plea, or, guilty as 
 plead. The president of the court re- 
 cords the votes and announces the re- 
 sult at the end of each voting period. 
 The majority rules. In case of a tie 
 in the vote upon a certain specification 
 the finding is " not guilty," in other 
 words, the accused is given the benefit. 
 
 22. After arriving at a finding on all 
 the specifications and charges, and hav- 
 ing verified same, the president an- 
 nounces : The court will be opened. 
 The judge advocate is notified and the 
 parties that withdrew return to the 
 court room as in paragraph 8. The 
 president inquires : Is there anything 
 further to submit in this case? 
 
 If there is nothing further, the judge 
 advocate so announces. If there is 
 evidence of previous convictions that 
 have been referred to the court by 
 proper authority, the judge advocate 
 announces : The jttdgie advocate has 
 the following evidence of previous 
 convictions to present for the consid- 
 eration of the court. The judge advo- 
 cate reads the evidence of previous 
 convictions and, after completing each 
 case, the accused is permitted to verify 
 the same and add such remarks as may 
 be appropriate. The president an- 
 nounces : The court will be closed. All 
 except the members of the court again 
 withdraw, and the court proceeds to a 
 sentence in the case. 
 
 23. In arriving at a sentence, after a 
 finding of guilty, the court proceeds as 
 follows : 
 
 (a) One member of the court is de- 
 tailed to verify the maximum 
 
 limit of punishment that may 
 be awarded in the case. This 
 precaution is taken to avoid a 
 sentence greater than the 
 maximum authorized. 
 
 (b) The president of the court calls 
 
 upon members to submit sen- 
 tences. Those who so desire, 
 write out a sentence on a 
 piece of paper and pass it to 
 the president. When one or 
 more have been received, the 
 president arranges them in the 
 order of their severity and in- 
 quires: Are any other sen- 
 tences proposed? If there be 
 none, the president selects the 
 least severe sentence that has 
 been proposed, reads it, and 
 calls for a vote on it. 
 
 (c) The members vote " yes," indi- 
 
 cating that they concur in the 
 sentence or "no," indicating 
 that they do not concur in it. 
 The voting starts with the 
 junior member of the court, 
 and proceeds as indicated pre- 
 viously when voting on the 
 finding. The president records 
 the vote and announces the re- 
 sult. The majority rules. If 
 there is a tie vote the sentence 
 is lost. In this case the court 
 proceeds to vote in like man- 
 ner upon the next least severe 
 sentence proposed. Should 
 this also be lost, voting is con- 
 tinued on sentences until one 
 is carried. This is the sen- 
 tence of the court. 
 
 24. The judge advocate is recalled 
 and the president gives him the findings 
 and sentence, which he preserves for 
 record in the case. The court then pro- 
 ceeds to the consideration of other 
 business or adjourns to meet at the 
 call of the president; or adjourns to 
 meet at a certain time; or takes a re- 
 cess for such a time. 
 
 25. In the preparation of the record 
 of a case the reporter writes up all the 
 proceedings, entering everything that 
 transpires during the trial, including 
 all the evidence, objections, rulings of 
 the court, etc. The judge advocate is 
 
44 
 
 Night Operations 
 
 required to enter the findings and the 
 sentence in the record in his own hand- 
 writing or on a typewriter, in which 
 latter case he is required to certify 
 that he personally recorded the find- 
 ings and sentence. The record of the 
 trial is signed by the president of the 
 court and the judge advocate, sealed, 
 and mailed to the convening authority 
 for final action. 
 
 Q. In comparison with the proceedings of 
 a civil court, what are the duties of 
 the members and of the judge advo- 
 cate of a court-martial? 
 
 A. The members of the court act in the 
 capacity of both judge and jury. 
 2. The judge advocate is the prosecuting 
 attorney, or state's attorney. 
 
 Q. What action is taken by a member of the 
 court when he is unable to attend a 
 session? 
 
 A. He wiU communicate the cause to the 
 judge advocate, and the same will be 
 entered on the record of the pro- 
 ceedings. 
 
 Q. Who is the president of a general court- 
 martialf 
 
 A. The president of the court is not an- 
 nounced. The senior oiBcer present 
 acts as president. 
 
 Q. What are the duties of the president of a 
 general court-martial? 
 
 A. 1. He has the ordinary duties and priv- 
 ileges of the member of a court 
 
 2. He is the organ of the court to main- 
 tain order and conduct its business. 
 
 3. He speaks and acts for the court in 
 every instance where a rule of action 
 has been prescribed by law, regula- 
 tions or its own resolution. 
 
 4. He administers the oath to the judge 
 advocate. 
 
 5. He authenticates by his signature, all 
 acts, orders and proceedings of the 
 court requiring it. 
 
 6. He takes the proper steps to insure 
 prompt trial and disposition of all 
 charge referred to the court and keeps 
 the court advised thereof. 
 
 Q. What are the duties of the judge advo- 
 cate with regard to the accused prior to 
 the assembling of the court for his 
 trial? 
 
 A. 1. He should acquaint the accused with 
 the accusations against him. 
 
 2. He should inform him of his right to 
 have counsel, and arrange for the de- 
 tail of counsel when one is desired by 
 the accused. 
 
 3. He should inform him of his right to 
 testify in his own behalf or to make 
 a statement to the court. 
 
 4. He should furnish him with a copy of 
 charges against him if so desired. 
 
 5. He may ask the prisoner how he in- 
 tends to plead; but, when the accused 
 is an enlisted man, 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. 
 
 Q. When the accused decides to plead 
 " Guilty," what are the duties of the 
 judge advocate towards him? 
 
 A. 1. Advise him of his right to introduce 
 evidence in explanation of his offence, 
 and assist him in securing it. 
 3. During the trial he will see that the 
 accused has full opportunity to inter- 
 pose such pleas and make such defence 
 as may best bring out the facts, the 
 merits, or the extenuating circum- 
 stances of the case. 
 3. In so far as such action may be taken 
 without prejudice to the accused, any 
 advice given him by the judge advocate 
 should be given or repeated in open 
 court and noted on the record. 
 
 Q. What are the duties of a judge advocate 
 with respect to the witnesses before 
 the trial of a case begins? 
 
 A. He will summon the necessary witnesses, 
 make a preliminary examination of 
 those for the prosecution, and, as far 
 as possible, systematize his plans for 
 conducting the case. 
 
 Q. What are the duties of a judge advo- 
 cate during the trial of a case? 
 
 A. 1. He conducts the case for the govern- 
 ment and prepares the record. 
 
 2. He executes all the orders of the court. 
 
 3. He reads the convening order to the 
 accused; swears the members of the 
 court, the interpreter, the reporter and 
 all witnesses. 
 
 4. He arraigns the accused; examines the 
 witnesses. 
 
 5. He keeps or superintends the keeping 
 of an accurate record of the proceed- 
 ings and affixes his signature to each 
 day's proceedings. 
 
Military Law — Concluded (April, 1917) 
 
 Q. What are the duties of the counsel of the 
 accused? 
 
 A. He should guard the interests of the 
 accused by all honorable and legitimate 
 means known to the law, as far as con- 
 sistent with military interests. He 
 should not obstruct the proceedings 
 with frivolous and manifestly useless 
 objections. 
 
 Q. May a soldier be detailed as the ste- 
 nographer of a court? 
 
 A. He may. He will be allowed extra pay at 
 the rate of S cents for each 100 words 
 taken in shorthand and transcribed. 
 
 Q. Under what conditions is a challenged 
 member of a court excused? 
 
 A. 1. That he sat as a member of a court of 
 inquiry that investigated the charges. 
 
 2. That he has personally investigated the 
 charges and expressed an opinion 
 thereon, or that he has formed a posi- 
 tive and definite opinion as to the guilt 
 or innocence of the accused. 
 
 3. That he is the accuser. 
 
 4. That he is to be a witness for the 
 prosecution. 
 
 5. That (upon a rehearing of the case) he 
 sat as a member on a former trial. 
 
 6. That, in the case of the trial of an 
 officer, the member will be promoted by 
 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. 
 
 Q. May the judge advocate challenge mem- 
 bers of the court? 
 
 A. While there is no statutory authority for 
 it, the practice is that he may. 
 
 Q. What action is taken by a member of a 
 court who has not been challenged, 
 but, nevertheless, believes himself to be 
 disqualified? 
 
 A. He may announce his disqualification in 
 open court in order that he may be 
 challenged, or he may apply to the 
 appointing authority to be relieved. 
 
 Q. What are the different pleas in court- 
 martial procedure? 
 
 A. 1. Plea to the jurisdiction. 
 
 2. Plea in abatement. 
 
 3. Plea in bar of trial. 
 
 4 Plea to the general issue. 
 Q. What is a plea to the jurisdiction? 
 A. A plea to the jurisdiction denies the right 
 
 of the court to try the case. 
 Q. What are the grounds for the plea to 
 
 the jurisdiction? 
 A. 1. That the court was appointed by an 
 
 officer who did not have the legal 
 
 authority to do so. 
 
 2. That it is composed wholly or in part 
 of members not authorized to sit upon 
 such a court-martial. 
 
 3. That the accused is not subject to the 
 jurisdiction of the court. 
 
 4. That the court has not the legal power 
 to try the offense charged. 
 
 Q. What is a plea in abatement? 
 
 A. It is based upon some defect in the charge 
 or specification, and is one that oper- 
 ates merely to delay the trial. An 
 accused who submits a plea in abate- 
 ment must show how the error may be 
 corrected. The judge advocate will 
 correct the error so as to meet the 
 objection, and the trial proceeds. 
 
 Q. What are the pleas in bar of trial? 
 
 A. 1. Statute of Limitations. 
 
 2. Pardon. 
 
 3. Constructive condonation. 
 
 Q. What is the Statute of Limitations? 
 
 A. They are statutes of which the accused 
 may take advantage, thereby depriving 
 the Government of the power to try or 
 punish him after the lapse of a specified 
 
 45 
 
46 
 
 Night Operations 
 
 period following the commission of the 
 offense. They are enacted to secure 
 the prompt punishment of criminal 
 offenses, and 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 prac- 
 tice, prosecutions are limited both as 
 to time and as to number. 
 
 Q. For what crimes are there no statutes 
 of limitations? 
 
 A. 1. Desertion in time of war. 
 
 2. Mutiny. 
 
 3. Murder. 
 
 Q. In what cases is the statutory period ex- 
 tended to three years? 
 A. 1. Desertion in time of peace. 
 
 2. The crimes (felonies) enumerated 
 under the 93rd Article of War. 
 
 3. The crimes and offenses (Frauds 
 against the Government) enumerated 
 in the 94th Article of War. 
 
 Q. What is the ordinary period of the statute 
 of limitations? 
 
 A. Two years. 
 
 Q. How is the time of the statute of limi- 
 tations computed? 
 
 A. The point at and from which the period 
 of limitation begins is the date of the 
 commission of the offense. The point 
 at which the period of limitation termi- 
 nates, and from which said period is 
 to be reckoned back, is the date of the 
 arraignment of the accused. 
 
 Q. What periods of time are excluded in the 
 computation of the period of limita- 
 tion? 
 
 A. 1. The period of any absence of the 
 accused from the jurisdiction of the 
 United States. 
 2. Any period during which, by reason of 
 some manifest impediment, the accused 
 shall not have been amenable to mili- 
 tary justice. 
 
 Q. In military practice may a person be tried 
 twice for the same offense? 
 
 A. He may not 
 
 Q. What constitutes a " trial? " 
 
 A. When the accused has been duly con- 
 victed or acquitted by a court-martial 
 he has been " tried." 
 
 Q. What is meant by pardon? 
 
 A. A pardon is the act of the President 
 which exempts the individual on whom 
 
 it is bestowed from the punishment 
 which the law inflicts for the crime 
 that he has committed. 
 
 Q. What is meant by constructive condona- 
 tion? 
 
 A. Where a deserter has been restored to 
 duty, without trial, by the authority 
 competent to order his trial, this action 
 is regarded as a constructive condona- 
 tion of the offense and may be pleaded 
 in bar of trial subsequently ordered. 
 
 Q. What are some of the inadmissible 
 special pleas? 
 
 A. 1. Former punishment; that is, the ac- 
 cused has already been adequately pun- 
 ished by his commanding officer for the 
 offense. 
 
 2. Illegal enlistment; that is, that the ac- 
 cused claims to have enlisted under age, 
 without the necessary consent of his 
 parents or guardian. 
 
 3. Release from arrest. 
 
 4. Undergoing sentence of a court- 
 martial. 
 
 5. Long delay in bringing to trial, but 
 within the period of the statutes of 
 limitation. 
 
 6. Malice of the accuser. 
 
 7. Bad character of the accuser. 
 
 8. Intoxication. 
 
 9. Insanity. 
 
 10. Obedience to military order. 
 
 11. Mistake of fact or law. 
 
 Q. What are the 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 kin- 
 dred nature, guilty to the specification 
 excepting certain words and substitut- 
 ing therefor certain others, to the ex- 
 cepted words, not guilty; to the sub- 
 stituted words, " guilty," and to the 
 charge not guilty, but guilty of the 
 included lesser offense. 
 
 Q. When a plea of guilty is entered, does that 
 exclude evidence being taken? 
 
 A. It does not. The court should take evi- 
 dence after a plea of guilty, except 
 when the specification is so descrip- 
 tive as to disclose all the circumstances 
 of mitigation or aggravation. 
 
Night Operations 
 
 47 
 
 Q. What action is taken upon a plea of 
 guilty entered by the accused? 
 
 A. The president of the court is required to 
 explain : 
 
 1. The various elements which constitute 
 the offense charged. 
 
 2. The maximum punishment which may 
 be adjudged by the court for the offense 
 to which the accused has pleaded 
 guilty. 
 
 Note. — The accused will then be asked 
 whether he fully understands that, by plead- 
 ing 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. 
 Q. When an accused pleads guilty and there- 
 after makes a statement at variance 
 with his plea, what action is taken? 
 A. The plea of guilty is withdrawn and a 
 plea of not guilty substituted therefor. 
 Q. May a plea of "guilty, without crimi- 
 nality " he entered. 
 A. No. It is the same as a plea of not guilty. 
 Q. What action is taken when an accused 
 refuses to plead, stands mute, or an- 
 swers irrelevantly? 
 A. The court proceeds to trial and judgment 
 
 as if he had pleaded " not guilty." 
 Q. What is a nolle prosequi? 
 A. A declaration of record on the part of 
 the prosecution that it withdraws a 
 charge or specification from the in- 
 vestigation and will not prosecute the 
 same at the trial. 
 Q. Who has authority to enter a nolle pro- 
 sequi? 
 A. The convening authority. 
 Q. What are the principal grounds for nolle 
 
 prosequi in court-martial practice? 
 A. 1. The fact that the charge or specifica- 
 tion is discovered to be substantially 
 defective and insufficient in law. 
 
 2. That it is ascertained the allegations 
 cannot be proved. 
 
 3. That the testimony available is not 
 sufficient to sustain the allegations. 
 
 4. That the criminality of one of the ac- 
 cused, where there are several, cannot 
 be established. 
 
 5. That it is proposed to use one of the 
 accused as a witness. 
 
 Q. Who procures the attendance of witnesses 
 
 before a court-martial? 
 A. The judge advocate. 
 
 Q. How is the attendance of witnesses 
 ordinarily secured? 
 
 A. 1. Persons in the military service sta- 
 tioned at or near the place of trial: 
 (o) By informal notice served by the 
 judge advocate upon the person con- 
 cerned. (6) If for any reason a formal 
 notice is required, the judge advocate 
 will request the commanding officer to 
 order the witness to attend. 
 
 2. Persons in the military service sta- 
 tioned at points distant from the place 
 of trial, when mileage is involved: 
 The judge advocate will request that 
 orders issue for witness to attend. 
 
 3. Civilian witnesses : The judge advo- 
 cate will endeavor to secure attendance 
 by correspondence, sending the witness 
 subpoenas in duplicate and a request 
 to accept service by correspondence. 
 If such informal methods are ineffec- 
 tive, formal duplicate subpoena will be 
 issued by the judge advocate for ser- 
 vice on the witness. If the witness is at 
 or near the post where the court is 
 sitting, service may be made by the 
 judge advocate or by a person desig- 
 nated by him. If the witness is at or 
 near another post, the judge advocate 
 will send the subpoena direct to the 
 commanding officer of such post, re- 
 questing the service of same. If the 
 witness does not reside near any mili- 
 tary post or command, the judge advo- 
 cate will send the subpoena to the 
 department commander requesting 
 service. 
 
 Q. In what class of cases are depositions 
 prohibited? 
 
 A. They cannot be introduced by the prose- 
 cution in capital cases. 
 
 Q. What is a subpoena duces tecum? 
 
 A. It is a subpoena requiring a person to 
 present himself before the court, 
 bringing with him certain books, papers 
 or documents which it is desired to 
 introduce in evidence. 
 
 Q. How may the attendance of a civilian 
 witness be compelled? 
 
 A. By a warrant of attachment 
 
48 
 
 Night Operations 
 
 Q. What action is taken when a warrant of 
 
 attachment becomes necessary? 
 A. 1. The judge advocate will issue the war- 
 rant of attachment and deliver it to 
 the officer designated by the depart- 
 ment commander for execution. 
 2. The following papers will accompany 
 the warrant of attachment. 
 
 (o) The original order (and modi- 
 fying orders) appointing the 
 court for the trial of the case 
 in which the witness is to 
 testify. 
 (6) A copy of the charges and 
 specifications in the case as 
 referred for trial. 
 
 (c) The original subpoena, with the 
 
 proof of service. 
 
 (d) An affidavit of the judge advo- 
 
 cate or summary court officer 
 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. 
 Q. What action is necessary when force has 
 to be resorted to to compel the atten- 
 dance of a witness? 
 A. The post commander nearest the resi- 
 dence of the witness will furnish a mili- 
 tary detail sufficient to execute the 
 process. 
 Q. If, while serving a warrant of attachment 
 for a witness, an oMcer is served with 
 a writ of habeas corpus from a United 
 States Court or a United States Judge, 
 what action is taken? 
 A. 1. The writ will be promptly obeyed. 
 
 2. The person alleged to be illegally re- 
 strained of his liberty will be taken 
 before the court from which the writ 
 has issued. 
 
 3. A return will be made setting forth 
 the reasons for the restraint. 
 
 4. The officer upon whom such a writ is 
 served will at once report by telegraph 
 the fact of such service direct to the 
 Adjutant General of the Army and to 
 the Commanding General of the de- 
 partment. 
 
 Q. If a writ of habeas corpus is issued by a 
 
 state court or judge, what action is 
 taken? 
 
 A. 1. The officer will make respectful re- 
 turn, 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, approved August 29th, 1916, 
 by a judge advocate of a lawfully con- 
 vened general, special (or summary) 
 court-martial, and that the Supreme 
 Court of the United States has decided 
 that state courts and judges are with- 
 out jurisdiction in such cases. 
 2. After having made the return, it is the 
 duty of the officer to hold the prisoner 
 in custody under his warrant of attach- 
 ment, and to refuse obedience to the 
 mandate or process of any government 
 except that of the United States. 
 3. It is the duty of the officer 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. 
 
 Q. What action is taken when a civilian wit- 
 ness, who has been duly subpoenaed 
 before a general court-martial, refuses 
 •to appear or qualify as a witness? 
 
 A. 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. 
 
 The 23rd Article of war (new) provides: 
 Every person not subject to military law, 
 who, being duly subpoenaed to appear as a 
 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 
 such court, commission, court of inquiry, or 
 board, wilfully 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 hereby being con- 
 ferred upon such courts, for such purpose; 
 and it shall be the duty of the United States 
 District Attorney or other officer prosecuting 
 for the government in any such court of 
 
Night Operations 
 
 49 
 
 original criminal jurisdiction, on the certifi- 
 cation 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 appropriation for the com- 
 pensation of witnesses. 
 
 Q. May a court-martial punish for contempt f 
 
 A. A court-martial may punish, at discre- 
 tion, subject to the limitations in A. W. 
 14 (with respect to summary courts) 
 any person who uses any menacing 
 words, signs or gestures in its presence, 
 or who disturbs its proceedings by any 
 riot or disorder. Such punishments 
 require the approval of the reviewing 
 authority in order to become effective. 
 
 Q. Under what circumstances are depositions 
 admissible before court-martial? 
 
 A. A duly authenticated deposition, taken 
 upon reasonable notice to the opposite 
 party, may be read in evidence before 
 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 is 
 taken in cases where the witness re- 
 sides, 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 100 miles from the place 
 of trial or hearing ; or when it appears 
 to the satisfaction of the court, com- 
 mission, or board, or appointing author- 
 ity 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; pro- 
 vided, that testimony by deposition may 
 be adduced for the defense in capital 
 cases. 
 
 Q. What is the procedure when depositions 
 are to be taken? 
 
 A. 1. All the interrogatories to be pro- 
 pounded are entered on the form for 
 interrogatories and deposition, and 
 the trial judge-advocate, summary 
 
 court officer, or recorder will take ap- 
 propriate steps to cause the desired 
 deposition to be taken with the least 
 practicable delay. 
 
 2. In an ordinary case he will either 
 send the interrogatories to the com- 
 manding officer of the post, recruiting 
 station or other military command at 
 or near which the person whose de- 
 position is desired is stationed, re- 
 sides 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 depo- 
 sition is desired is understood to be. 
 In a proper case, the interrogatories 
 may be sent to the department or 
 superior commander or to the witness 
 himself, and in any case they will, when 
 necessary, be accompanied by a proper 
 explanatory letter. 
 
 3. 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 noncommis- 
 sioned officer, if available — to the neces- 
 sary place for the purpose of obtain- 
 ing the deposition, or he may arrange 
 by mail or otherwise 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. 
 
 4. If the witness whose deposition is 
 desired is a civilian, the judge advo- 
 cate, or other person sending inter- 
 rogatories, will inclose with them a 
 prepared voucher for the fees and 
 mileage of the witness, leaving blank 
 such spaces therein as may be neces- 
 sary, together with the required num- 
 ber of copies of the order appointing 
 the court, commission or board. The 
 judge advocate, summary court oflScer, 
 or recorder will also send with the inter- 
 rogatories a subpoena in duplicate re- 
 quiring the witness to appear in person 
 at the 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. 
 
50 
 
 Night Operations 
 
 5. If a military ofiScer takes the deposi- 
 tion, he will complete the witness 
 voucher, certify it, and transmit it to 
 the nearest disbursing quartermaster 
 for payment. 
 
 6. When the deposition is taken by a civil 
 officer, he will be asked to obtain and 
 furnish to the military officer, requested 
 or designated to take the deposition or 
 cause it to be taken, the necessary data 
 for the completion of the witness 
 voucher, and the latter will complete 
 the voucher, certify it, and transmit it 
 to the nearest disbursing quartermaster 
 for payment. 
 
 7. In the case of military witnesses, sub- 
 poena will not accompany the inter- 
 rogatories, but the officer before whom 
 the deposition is to be taken will take 
 the necessary steps to have the wit- 
 nesses appear at the proper time and 
 place. 
 
 Q. What is the duty of the court with re- 
 spect to the protection of witnesses? 
 
 A. It is the duty of the court to protect 
 every witness from irrelevant, insulting, 
 or improper questions; from harsh or 
 insulting treatment, and from unneces- 
 sary inquiry into his private affairs. 
 The court must forbid any questions 
 which appear to be intended to insult 
 or annoy any witness, or which, though 
 proper in themselves, apnear to be 
 needlessly offensive in form. 
 
 Q. Under what conditions may evidence of 
 character and the services of the ac- 
 cused he importantf 
 
 A. 1. When the evidence of the guilt is not 
 strong and the good reputation of the 
 accused will strengthen the presump- 
 tion of innocence. 
 
 2. When the punishment is discretionary, 
 such evidence may be introduced with 
 a view to inducing the court to impose 
 a milder sentence. 
 
 3. When the punishment is mandatory, 
 such evidence may be introduced with 
 a view to inducing the court to recom- 
 mend clemency. 
 
 4. In any case, such evidence may be 
 introduced with a view to inducing the 
 reviewing authority to extend clemency. 
 
 Q. Is evidence of the had character of the 
 
 accused admissihle? 
 A. It is not If the accused takes the wit- 
 
 ness stand in his own behalf, his ver- 
 acity as a witness may be attacked as 
 in the case of any other witness. 
 Q. May the accused appear as a witness in 
 
 his own behalf? 
 A. Yes. The accused " shall at his own re- 
 quest, but not otherwise, be a com- 
 petent witness. His failure to make 
 such request shall not create any pre- 
 sumption against him." 
 Q. What procedure is required when the 
 accused declines to appear as a witness 
 in his own hehalf or to make a state- 
 ment? 
 A. In every case tried by a general court- 
 martial, in which the accused does not 
 testify or make a statement in his own 
 behalf, it must appear on record that 
 the president of the court explained to 
 the accused that he was privileged to 
 testify in his own behalf if he so de- 
 sire or to make an unsworn statement 
 to the court in denial, in explanation, 
 or in extenuation of the offense with 
 which he stood charged. The explana- 
 tion by the president, and the reply of 
 the accused thereto, shall appear upon 
 the record of the trial. The same 
 rule applies in the case of a special 
 court-martial, where the evidence is 
 recorded. 
 Q. What are the general rules regarding 
 
 the examination of witnesses. 
 A. 1. They are usually examined separately. 
 This rule is not inflexible. It is in 
 practice subject to the discretion of 
 the court, and it is never so rigidly 
 observed as to exclude the testimony 
 of one witness because he has been 
 present at the examination of other 
 witnesses. 
 2. The examination of witnesses usually 
 proceeds in the following sequence: 
 (a) Witnesses for the prosecution, 
 direct, cross, re-direct and re- 
 cross, examination. 
 (&) Witnesses for the defense in the 
 
 same order as (a), 
 (c) Witnesses for the prosecution in 
 rebuttal in the same order as 
 in (a), 
 (rf) Witnesses for the accused in 
 rebuttal of those introduced 
 by the prosecution, in the 
 order specified in (a). 
 
Night Operations 
 
 51 
 
 (e) Witnesses for the court, in the 
 order specified in (a). 
 The court may, in the interest of truth and 
 justice, call or recall witnesses or permit 
 their recall at any stage of the proceedings. 
 It may permit material testimony to be in- 
 troduced by either party quite out of its 
 regular order and place, and 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 
 woidd leave the investigation incomplete. 
 In all such cases, both sides must be present, 
 and any testimony thus received is subject to 
 cross-examination and rebuttal by the party 
 to whom it may be adverse. 
 
 3. Leading questions which a witness may 
 answer by "yes" or "no" should not 
 be asked, except on cross-examination; 
 to abridge the proceedings where the 
 witness may be led at once to points 
 on which he is to testify; when the 
 witness appears to be hostile to the 
 party calling him, or is manifestly un- 
 willing to give evidence; where there 
 is an erroneous statement in the testi- 
 mony, evidently caused by fault of 
 memory, and where the nature of the 
 case is such that the mind of the wit- 
 ness cannot be directed to the subject 
 under inquiry by other means. 
 Q. Are atHdavits admissible in evidence? 
 A. They are not, unless expressly consented 
 to by the judge advocate and the ac- 
 cused, with full knowledge of his 
 rights. 
 Q. What restriction is placed upon the 
 knowledge of the court with reference 
 to statement of service and the evidence 
 of preinous convictions of the accused? 
 A. The court will not be permitted to see 
 either until after they have arrived at 
 a finding. The statement of service 
 may be introduced in evidence by the 
 accused as proof of good character. 
 Q. What previous convictions will be con- 
 sidered by a court-martialf 
 A. 1. Only those covering oSenses com- 
 mitted within the year prior to the date 
 of the offense for which the accused 
 is being tried, and in the current en- 
 listment. 
 2. These will be considered only when 
 they are properly referred by the con- 
 vening authority. 
 
 Q. What is the object of introducing evi- 
 dence of previous convictions Ijifore .^(^_p 
 court-martial on the finding of ff^lty? \^ 
 
 A. The object is to see if the prisoned is. an ;v'y ■,' 
 old offender, and therefore less ea^ 
 titled to leniency than if on trial fonlys p ,u 
 first offense. -".*— 
 
 Q. What is the rule regarding the punishment 
 to be awarded. 
 
 A. That the least punishment by which dis- 
 cipline can be efficiently maintained is 
 the proper amount. 
 
 Q. What are the legal punishments that gen- 
 eral court-martials may impose upon 
 officers? 
 
 A. 1. Death. 
 
 2. Dismissal, with confinement at hard 
 labor. 
 
 3. Dismissal. 
 
 4. Loss of rank. 
 
 5. Suspension from rank, command, or 
 duty, with or without loss of pay or 
 part of pay. 
 
 6. Fine or forfeiture of pay. 
 
 7. Confinement to limits of post or com- 
 mand. 
 
 8. Reprimand. 
 
 9. Admonition. 
 
 Q. What legal punishments may courts- 
 martial impose upon enlisted men? 
 A. 1. Death. 
 
 2. Dishonorable discharge. 
 
 3. Confinement at hard labor. 
 
 4. Forfeiture of pay. 
 
 5. Hard labor without confinement. 
 
 6. Forfeiture of pay and allowances. 
 
 7. Detention of pay. 
 
 8. Reprimand. 
 
 Q. What are the rules regarding the dis- 
 honorable discharge of a soldier? 
 
 A. 1. A dishonorable discharge can be im- 
 posed only pursuant to the sentence of 
 a general court-martial. 
 
 2. The date on which the order pro- 
 mulgating the sentence is received at 
 the post where the soldier is held, is 
 the date of discharge. 
 
 3. A sentence adjudging a dishonorable 
 discharge to take effect at such period 
 during a term of confinement as may 
 be designated by the reviewing author- 
 ity, is illegal. 
 
 Q. May the deposits of a soldier be forfeited 
 by the sentence of a court-martial? 
 
 A. They may not. They are exempt from 
 liability to sentence of a court-martial, 
 
52 
 
 Night Operations 
 
 imposing a forfeiture of pay and allow- 
 ances. To sentence a soldier to deposit 
 a certain amount of his pay is illegal. 
 
 Q. When a disciplinary punishment is 
 awarded a soldier by his company com- 
 mander, what record is made of it? 
 
 A. A brief record will be made showing: 
 
 1. Name of the accused. 
 
 2. Brief statement of the offense, showing 
 time and place. 
 
 3. Statement as to whether or not the 
 accused demanded trial by summary 
 court. 
 
 4. Disposition of case, with date and pun- 
 ishment awarded. 
 
 5. Whether or not appeal was made to 
 higher authority. 
 
 6. Decision of higher authority on appeal. 
 
 7. Whether accused was required to serve 
 punishment pending appeal. 
 
 Q. What limitations are placed on courts- 
 martial in imposing punishments on 
 soldiers? 
 
 A. 1. Punishing by branding, tattooing or 
 marking the body, or by flogging is 
 prohibited. 
 
 2. The following have been discarded: 
 Carrying loaded knapsack; wearing 
 irons; shaving the head; placarding; 
 pillory; stocks, and tying up by the 
 thumbs. 
 
 3. Military duty as a form of punishment 
 tends to degrade duty and is to the 
 prejudice of the best interests of the 
 service. Punishment, such as imposing 
 tours of guard duty, requiring a sol- 
 dier to blow all calls for a period of 
 time, are not imposed. 
 
 4. Solitary confinement on bread and 
 water diet, and the placing of a prisoner 
 in irons, are regarded as a means of 
 enforcing prison discipline. They are 
 not to be imposed by a court-martial 
 as a punishment. 
 
 Q. Where are the limits of punishment that 
 may he imposed by a court-martial upon 
 a soldier on conviction to be found? 
 
 A. The latest executive order on the subject 
 became operative on March 1st, 1917, 
 as to offenses committed on and after 
 that date, and as to criminal acts com- 
 mitted prior to that date, whose maxi- 
 mum punishment was not prescribed in 
 the Executive Order of September Sth, 
 1914, published in G. O. No. 70. This 
 
 Q 
 
 order remains operative as to offenses 
 committed before March 1st, 1917, ex- 
 cept as to criminal acts whose maxi- 
 mum punishment has been decreased 
 by this order. 
 What are the general limitations with 
 regard to the punishment that a court- 
 martial may impose on a soldier? 
 
 1. A court shall not, by a single sentence 
 which does not include dishonorable 
 discharge, adjudge against a soldier: 
 
 (o) Forfeiture of pay at a rate 
 
 greater than two-thirds of his 
 
 pay per month. 
 (6) Forfeiture of pay in an amount 
 
 greater than two-thirds of his 
 
 pay for six months, 
 (c) Confinement at hard labor for a 
 
 period greater than six months. 
 
 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. 
 May general prisoners he tried by sum- 
 mary court? 
 They may. 
 
 May the summary court oMcer he chal- 
 lenged by the accused? 
 The summary court officer is not subject 
 
 to challenge. 
 What is the limit of punishment that may 
 be imposed upon a soldier by the sum- 
 mary court? 
 Not to exceed confinement at hard labor 
 for three months, or forfeiture of three 
 months' pay, or both; and, in addition 
 thereto, reduction to the ranks in the 
 cases of noncommissioned officers, and 
 reduction in classification in the cases 
 of first-class privates. 
 When the summary court ofUcer is also 
 the commanding oihcer, what action is 
 necessary with respect to a sentence of 
 the summary court? 
 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 
 
Night Operations 
 
 53 
 
 be carried into execution until the 
 
 same has been approved by superior 
 
 authority. 
 Q. What are the functions of summary 
 
 courts-martial t 
 A. 1. Power to administer oaths. 
 
 2. To hear and determine cases and, when 
 
 satisfied of the guilt of the accused 
 
 party, to adjudge the punishment to 
 
 be inflicted. 
 The following is the procedure in the in- 
 stitution and conduct of a trial before a 
 summary court-martial: 
 
 1. A summary court officer is appointed 
 in every command by the commanding 
 officer thereof, either in formal orders 
 or verbally. This officer is usually the 
 officer next in rank to the commanding 
 officer, but may be any officer whom 
 the commanding officer selects. 
 
 2. A soldier commits an offense for which 
 he may be properly tried by summary 
 court. Charges and specifications are 
 preferred against him on the blank 
 forms provided for that purpose. 
 These charges are made in triplicate 
 and forwarded to the commanding 
 officer for his action. They are usually 
 handed in at the adjutant's office with 
 the morning report, but may be sub- 
 mitted at any time. 
 
 3. The charge sheet contains: 
 
 1. The name and rank of the accused. 
 
 2. Statement of service. 
 
 3. Date of arrest or confinement. 
 
 4. Number of previous convictions. 
 
 5. Witnesses for the prosecution and 
 
 defense. 
 
 6. A statement of the charge. 
 
 7. A statement of the specification. 
 
 8. Signature of the officer preferring 
 
 the charges. 
 
 4. The commanding officer determines 
 whether or not the case shall be 
 brought to trial and, when trial is de- 
 cided upon, the charges are forwarded 
 by indorsement to the summary court 
 officer, the indorsement being signed by 
 the adjutant. 
 
 5. The summary court usually sits at a 
 stated hour daily, except Sunday (no 
 legal objection to sitting on Sunday), 
 at such time as will least interfere with 
 the training of troops. The accused 
 and all witnesses are ordered to appear 
 
 at the specified time, and the trial pro- 
 ceeds much in the manner of civil 
 police courts. 
 
 6. The accused is brought before the sum- 
 mary court officer, who reads the 
 charges and specifications to him and 
 calls upon him to plead to same. The 
 plea is usually " guilty " or " not guilty." 
 
 Note. — When the accused pleads guilty the 
 summary court officer will explain to him: 
 (a) The elements constituting the 
 offense to which he has pleaded 
 guilty, and 
 (6) The maximum punishment 
 therefor. 
 He will ask him whether he fully under- 
 stands : 
 
 (o) That by pleading guilty thereto, 
 he admits all the elements of 
 the crime or offense, and 
 (6) That he may be punished as ex- 
 plained above. 
 
 7. Witnesses for the prosecution are 
 called and sworn by the summary court 
 officer, who conducts the direct exami- 
 nation, after which the accused is per- 
 mitted to cross-examine. These are 
 followed by the witnesses for the de- 
 fense, who are likewise sworn and 
 examined. The accused may then be 
 sworn as a witness in his own behalf, 
 make a statement and be cross- 
 examined by the summary court, or he 
 may make an unsworn statement, in 
 which case he is not subject to cross- 
 examination. 
 
 8. After all the evidence has been pre- 
 sented in the case, the summary court 
 officer arrives at a finding and enters 
 the same in the appropriate space on 
 the blank form. This is followed by 
 the sentence he imposes on the accused, 
 in case of a finding of guilty. He then 
 signs the blank at the place provided 
 for his signature. 
 
 9. The blanks, thus completed, are turned 
 in to the adjutant, who examines the 
 finding and verifies the sentence to see 
 that it is not in excess of the limit 
 prescribed in the executive order of the 
 President, and submits them to the 
 commanding officer for his action. 
 
 10. If the commanding officer concurs in 
 the sentence, he approves the same by 
 affixing his signature and dating it at 
 
54 
 
 Night Operations 
 
 the appropriate place on the blank, and Q. 
 
 the record of the court is complete and 
 
 the sentence may be executed. A. 
 
 11. The second copy of the blank is then 
 completed by making it an exact copy 
 of the original, and it is certified as 
 a true copy by the adjutant. 
 
 12. The original is filed at post head- 
 quarters and forms the permanent 
 record of cases tried by summary court. 
 The second copy, authenticated by the Q. 
 adjutant, is furnished the company 
 commander of the accused and forms A, 
 the company record of the trial. The 
 third is forwarded to the officer having 
 general court-martial jurisdiction over 
 
 the command. 
 
 Q. What action is necessary before a sentence 
 of a court-martial may be carried into 
 execution? 
 
 A It must be approved by the officer ap- 
 pointing the court, or by the officer 
 commanding for the time being. The 
 acquittal of the accused does not en- 
 title him to be released from confine- 
 ment at once. The acquittal is not 
 effective until it has been acted upon 
 by the proper reviewing authority. 
 
 Q. What is the effect of a disapproval of a 
 ■finding and sentence of a court-martial 
 on the part of the reviewing authority? 
 
 A. A disapproval of the sentence of a court- 
 martial by the reviewing authority is 
 not a mere expression of disapproba- 
 tion, but is a final determinate act 
 putting an end to the proceedings in Q. 
 a particular case and rendering them 
 entirely nugatory and inoperative; and A. 
 the legal effect of a disapproval is the 
 same whether or not the officer dis- 
 approving is authorized finally to con- Q. 
 firm the sentence. But to be thus 
 operative, the disapproval should be ex- A. 
 pressed. The effect of the entire dis- 
 approval of a sentence is not merely to 
 annul the same as such, but also to 
 prevent the accruing of any disability Q. 
 or forfeiture, which would have been 
 incidental on approval. 
 
 Q. How are general court-martial trials of A. 
 enlisted men published to the service? 
 
 A. By general court-martial orders, promul- 
 gated from headquarters of the officer 
 authorized to convene general courts- 
 martial. 
 
 What elements does a G. C. M. O. con- 
 tain? 
 
 So much of the proceedings of the court 
 as will give the charges and specifi- 
 cations, the pleas, findings, and sen- 
 tences, and the action and remarks of 
 the reviewing authority on the case. If 
 the charges contain matter unfit for 
 publication, it will be omitted from the 
 order. 
 
 In what case is the confirmation of the 
 President required? 
 
 1. Any sentence respecting a general 
 officer. 
 
 2. Any sentence extending to the dismissal 
 of an officer, except that in time of 
 war a sentence extending to the dis- 
 missal 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. 
 
 3. Any sentence extending to the supen- 
 sion or dismissal of a cadet. 
 
 4. Any sentence of death, except in the 
 cases of persons convicted in time of 
 war of murder, rape, mutiny, deser- 
 tion, or as spies, and in such excepted 
 cases, a sentence of death may be car- 
 ried into execution upon confirmation 
 by the commanding general of the 
 army in the field, or by the command- 
 ing general of the territorial depart- 
 ment or division. 
 
 What is meant by mitigation of punish- 
 ment? 
 
 A reduction in quantity or quality, the 
 general nature of the punishment re- 
 maining the same. 
 
 May the sentence of a court-martial be 
 added to in any way? 
 
 Neither the reviewing authority nor any 
 other officer is authorized to add to 
 the punishment imposed by a court- 
 martial. 
 
 Under what circumstances may soldiers 
 convicted by court-martial be confined 
 in a penitentiary? 
 
 1. Desertion in time of war. 
 
 2. Repeated desertion in time of peace. 
 
 3. Mutiny. 
 
 4. When the offense is of a dvil nature, 
 or by commutation of the death sen- 
 tence. 
 
Night Operations 
 
 55 
 
 5. On conviction of two or more acts or 
 omissions, any one of which is punish- 
 able by confinement in a penitentiary. 
 
 Q. What is fraudulent enlistment? 
 
 A. An enlistment procured by means of 
 wilful misrepresentation in regard to a 
 qualification or disqualification for en- 
 listment ; or by intentional concealment, 
 of a disqualification 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 re- 
 jected. 
 
 Q. What elements must he proved to convict 
 on a charge of fraudulent enlistment? 
 
 A. 1. The enlistment of the accused in the 
 military service as alleged. 
 
 2. That the accused wilfully misrepre- 
 sented a certain fact, or facts, regard- 
 ing his qualifications or disqualifica- 
 tions for enlistment, or wilfully — that 
 is, intentionally — concealed a disquali- 
 fication as alleged. 
 
 3. That enlistment was procured by such 
 misrepresentation or concealment. 
 
 4. That under such enlistment, the accused 
 received either pay or allowances, or 
 both, as alleged. 
 
 5. Where a soldier enlists without a dis- 
 charge, the proof should include the 
 fact that at the time of the alleged en- 
 listment the accused was a soldier, and 
 that the enlistment was entered into 
 without a regular discharge from the 
 former enlistment. 
 
 Q. What is desertion? 
 
 A. An 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 
 return and repentence are no defense, 
 nor is it a defense that the deserter at 
 the time of departure intended to re- 
 port for duty elsewhere. Thus, a 
 soldier who 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, is a 
 deserter; but unless such intent exists 
 at some time, the soldier cannot be a 
 deserter, whether his purpose is to stay 
 away a definite or an indefinite 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 of war, made 
 sufficient evidence of desertion. In such 
 case, proof of the intent to stay perma- 
 nently away from his former place of 
 service, and the status of absence with- 
 out leave therefrom, are unnecessary. 
 
 Q. What elements must he proved to convict 
 a soldier of desertion? 
 
 A. 1. That the accused absented himself or 
 remained absent without authority 
 from his place of service as alleged. 
 
 2. That he intended, at the time of absent- 
 ing himself or at some time during his 
 absence, to remain away permanently 
 from such place. 
 
 3. That his absence was of a specified 
 duration and was terminated as alleged. 
 
 4. 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 judicial notice of the 
 existence of a status of war. 
 
 5. Where the soldier enlisted without a 
 discharge : that the accused was a soldier 
 in a certain organization of the army, 
 as alleged ; and that without being dis- 
 charged from such organization, he 
 again enlisted in the army, navy or 
 marine corps, or some foreign army, 
 as alleged. In this case, proof of the 
 absence without leave and of the in- 
 tention not to return become unneces- 
 sary. 
 
 Q. What is absence without leave? 
 
 A. When 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, he is 
 said to be "absent without leave," or 
 AWOL. 
 
 Q. What elements must he proved in 
 
 AWOL. 
 A. 1. Where the accused fails to appear or 
 goes from a place of duty : 
 
 (a) That a certain authority ap- 
 pointed a certain time and 
 place for a certain duty by the 
 accused, as alleged. 
 
56 
 
 Night Operations 
 
 (d) That he failed to report at such 
 place at the proper time, or, 
 having so reported, went from Q. 
 the same without authority 
 from any one competent to A. 
 give him leave to go. 
 2. Where the accused is charged with 
 absenting himself without proper leave : 
 (o) That the accused absented him- 
 self from his command, guard, 
 quarters, station, or camp for a Q. 
 certain period, as alleged. A. 
 
 (6) That such absence was without 
 authority from anyone com- 
 petent to give him leave. 
 Q. Distinguish between arrest and confine- 
 
 mentf Q. 
 
 A, The arrest of an officer has been com- A. 
 pared to an enlargement on bail, the 
 security being the officer's commis- 
 sion. It is for this reason that the 
 punishment for breach of arrest may Q. 
 include dismissal. The distinction be- 
 tween arrest and confinement lies in A. 
 the difference between the kind of re- 
 straint imposed. In arrest the restraint 
 is moral, imposed by the orders fixing 
 the limit of the arrest, or by the terms 
 of the Article. 
 Q. What constitutes breach of arrest f 
 A. The offense is committed when the re- 
 strained person infringes the limits set 
 by orders, or by the 69th Article of 
 War. The intention or motive that 
 actuated him is immaterial to the ques- 
 tion of guilt, though, of course, proof 
 of inadvertence or bona fide mistake is 
 admissible in guiding the court in fixing 
 punishment. The unlawfulness of the 
 arrest is a valid defense, but innocence 
 
 of the accusation for which the arrest 
 is imposed is entirely irrelevant. 
 What elements must be proved to convict 
 of a breach of arrest? 
 
 1. That the accused was duly placed in 
 arrest. 
 
 2. That before he was set at liberty by 
 proper authority he transgressed the 
 limits fixed by proper authority or by 
 the 69th Article of War. 
 
 What is a countersign^ 
 
 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 for per- 
 mission to pass the lines. 
 
 What is a parolef 
 
 A parole is a word used as a check on 
 the countersign. It is imparted only to 
 those who are entitled to inspect the 
 guards, and to commanders of guards. 
 
 What constitutes the offense of making 
 known the countersign and parolef 
 
 The class of persons entitled to receive 
 the countersign will expand and con- 
 tract with 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 actihg. 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 en- 
 titled to receive it. Before imparting 
 such a word it behooves a person sub- 
 ject to military law to determine at his 
 peril that the person to whom he pre- 
 sumes to give the countersign or parole 
 is entitled to receive it.