tenv if'loo Conf Pam 12mo #100 lllllil > _OI R C U L ^ R . : ^ . . . ^ HEAD QRS. AEMY NORTHERN VA. August 14, 1863. The foUowmg Instructions are issued for the guidance of Courts Martial and *', Judges Advocate in this army: Ql / I. Mode of recording Proceedings, viz : / ProceediDgs'of a Gf&ieral Court Martial, convened at , by virtue of ; ^ tije following Special Order : ^ ^ ' I JT(j£ iftserraj^'opjj of . Lt. Col. A B C, ■"• 2d Virginia Regiment. 3, M, ■ &c. «fcc. ♦ 4. &c V &c. &c. Cap^Mafi £ M, 4th Texas Regiment, Judge Advocate^. ■ , h ' :■ Absent: ^^ , Captain X Y Z, 6th Texas Regiment. Captain S B, Assistant A. General P. A. C. S. - m [ The christian name, surname, with rank, regiment, 8fc., of each member and ^.* of the Judge Advocate, to be given.l jp* The Judge Advocate read a communication from Captain Z, stating the caus^* of his absence, and enclosing surgeon's certificate of indisposition. The letter, with certificate, is appended hereto, and marked A. The cause of Captain B's abseride is not known. The Court then proceeded to the trial of Lieutenant X Y, 3rd Virguaia Regi- "*^. ment, who was called before the Court, and having heard the order appointing the same read, was asked if he had any objection to any member named therein. I A challenge not made noic, cannot be made at a later stage of the proceedings, except for cause now unknown to the accxiseoi^ own to the accuseA] ..^■nt -^ .•» '/ To Avhich he replied in th ^Ot'\ The accused objected to CaJ cliallenge as fyjjows, viz : ^ I Here insert statement of the accused imarke is-cause u^ Captain /.^^ wrfs cfli lue df^ibera- ug recalled. viz: that the excused from The Court wrf§ dS^j^, ^ ofial^ugcd lion, the doors -were opened; and the accused and challenged the decision of the Court -vyas announced by the Judge Ad^ate, challenge is sustained as sufficient, and that Captain ■ ^i§ serving as a member of the Court pending the trial of this case. ■^*-» ^The accused having no objections to any of- the other members, the Court was then, in his presence, duljOforu by the Judge Advocate, and the Judge Advo- cate was duly sworn by the President of the Court. [ J.< this stage of the proceedings, the accused, if desiring it, should apply for the pritilese of introducing counsel, or fordh^wstponcment of his case, giving his rrnsons for such postponement.^ ^ /A^ St'\/ "^ ijf^ l^^^-^^ ;^ The Judge Advocate then admonished the acc^d of the gravity of the,of- aJa If uce with which he stand? charged, viz : Druj^ke^ness on duty, the penalty for ^ which is cashiering. ^^^^^J--'-*-^'--^ *-— <^ \^0r'\ Desertion, the penalty for Avhich is death or confinement in a peniten- iary, with or without hard labor, for not less than one year nor more than five, -r such punishment, not inconsistent with the above, as the Court may deter- iiine;,and asked him if ho desired counsel, cff4^ postponement of the ^ase for any reason. J The accused declared himself ready for trial, and applied to the Court to be V ^jermitted to introduce M N, Esq. as his counsel ; which application, the Court >VvS^'fcing cleared for deliberation, was granted, and the accused, together with his xsaid^unsel, reappeared in Court. \j aP'a^cused, Lieutenant X Y of the 3d Va. Regiment, was then arraigned on \ T rheloliowing Charge and Specification ; which were read aloud by the Judge Ad- A^,^ vocate, to wit : ^^~~ ^~~~^- ^ XjPV Charge— Drunkenness on dutyV ^^-- a ' "' Specification— In this ,^ that he Lieutenant X Y of th e 3d Va. RegimenJ was «Hind drunk Avhilst on duty at regimenM df^ss paratre^f^'TO this at or ney >n or about'the day of ' * in the year of our Lord one tfibusan^ ■ ^eigbt hundred and sixty- [ The Charge and Specification should he copied in the proceedin^^^afU abbrevia- tions in t/ic original being written out hi words.'\ ^ The Judge Advocate addressed the accused, Lieutenant X Y : You Have heard the Charge and Specification prefei-^j^^d against you. How say you— Guilty or Not Guilt 4 4 To which the accused pleaded as, foUop'sTto wit : / To Specification, - ", To Charge, ■m^^>-~^ - ". Not Guilty. , ■ Not Guilty. 5* " All persons present in the Court as witnesses in this case, were then direct«^ by the authority convening it ; and Charges ordered for trial can be withdrawn* only by the authority so ordering them. 4. But one member of a Court can be challenged at a time. The objection of the accused, the statement 6f-the'challenged member, and the declarations of the witnesses on the point, are ma*de without oath, the Court, previously to its being sworn, having no right to administer an oath. The Judge Advocate cannot be challenged. 5. While the accused is allowed counsel to assist him in conducting his de- fence, such assistance is confined strictly to giving advice, framing questions to be put either by the accused or through the Judge Advocate. He has no right to propound questions nor to address the Court. He may, by permission, read the ^isoner's written defence. 6. It is the duty of the Judge Advocate to see that the Charge and Specifica- tions are correct, before the accused is called upon to plead to them. They may be amended before plea, and after plea in case the plea is in abatement for a mis- nomer or wrong addition. In this latter case, they should be amended according to what prisoner declares to be his true name and addition ; and the trial will pro- ceed as if no such dilatory plea had been intei"posed. The Charge should be single — e.g. a Charge: "Desertion and cowardice" is improper. Each offence should constitute a separate and distinct Charge. The Specification should set forth briefly, clearly and explicitly the facts, cir- cumstances and intent which constitute the crime, stating nothing argumenta- tively, and adopting, as nearly as possible, the language of the Article of War i^eferring to the offence charged. The Specification should, like the Charge, be single — e. g. a Specification averring one to be a habitual coward, is bad. The facts which show cowardice on each particular occasion should be set forth in separate and distinct Specifications. Written instruments, forming the gist of the offence charged, must be set out verbatim, " in words and figures as follows, viz." If a part only of the written instrument is included in the offence, that part need only be set forth. The party committing the offence, and the party against whom it is committed, as in the 9th Article of War, «&c., must be described by their christian name and surname and proper addition, viz : rank, company, regiment, or other designation. Should the party injured, however, be unknown, the proper description is, " a person or persons unknown." The Specification should further be certain as to time and place; though the time may be stated as " on or about a certain day," and the place as " at or near a certain locality." 7. The accused must plead to each Charge and Specification separately; and if he pleads Not Guilty to a part of either, the Court should talvc testimony thereon before making the finding. The plea of Guilty to the Charge and Specification renders unnecessary any evidence in chief, but does not preclude the accused from offering testimony as to facts and character, which may mitigate the sentence, or from making a written defence. In such case, however, the Judge Advocate is entitled to offer rebutting testi- •mony, and to the reply. The plea of l?ot Guilty of the Charge and Specification, puts in issue every fact alleged, and they must consequently be proved : nor should it be left to in- ference, but distinctly proved, that the prisoner at the bar is the accused ; and furthermore, that he is a soldier, retainer to the camp, or other person subject to the jurisdiction of a Court Martial. Courts of limited jurisdiction, as Courts Martial are, must show upon the record the facts giving them jurisdiction. To support the plea of a fonner acquittal or foraier conviction, it is necessary the accused should have been acquitted or convicted on a fonner trial, by a legal Court of competent jurisdiction ; and the record of this fact must be produced to the Court. An illegal Court being no Court, its verdict is no bar to future pro- ceedings. No special form is required for pleas before Courts Martial. 8. In evidence, the ordinary rales of civil courts apply ; and questions by the Judge Advocate, prisoner or a member of the Court, are subject to the usual ob- jections. But a question by the Court cannot be objected to. A question of a member, adopted by the Court, becomes a question by the Court. The testimony of witnesses should be recorded in their very words, and not merely the substance given : nor is it suflGcient to record that " nothing material was elicited." All the testimony should be recorded, and once recorded, cannot be erased. If there is any doubt of the meaning of the witness, he must explain it in his own language. When his testimony is complete, it should be read over to him, but not pre- viously—otherwise this might defeat the object of the cross-examination. • As a general rule, the Charges and Specifications should not be read to the witness before he gives his evidence. If he drew the Charges, or was privy thereto, he may refresh his memory as to the incidental circumstances of date, «&c.; but whenever the Charge and Specification would recall particular words and expressions, &c. &c., the reading, operating really as a leading question, is manifestly improper, and must be avoided. The accused is always allowed, whether by the cross-examination of the wit- nesses for the prosecution, or by those for the defence, to prove character; and though gener9,l character, unconnected with the Charge, should not influence the finding, it often modifies the sentence. At any stage of the proceedings previous to the finding, the Court may recall witnesses — the parties being also recalled. A member of the Court and the Judge Advocate are competent witnesses ; but the member who is to testify had better withdraAv, provided the number present be not reduced below the minimum (five). The Judge Advocate, if a witness, is sworn by the President of the Court, and should give his testimony, as early as practicable, before hearing the other wit- nesses. 9. If the accused is found not guilty of the entire Specification, he must be ac- quitted also of the Charge. But a special verdict cau always be found of facts less (never, however, more) comprehensive than those alleged — e. g. under a Spe- cification averring absence, without leave, from the 1st January 1863 to 1st July 1863. Such absence may be found from the 1st February 1863 to the 1st June 1863, &c., but never for a term extending beyond the limits of that avenred. A prisoner found Guilty of the Specification and Not Guilty of the Charge, is virtually acquitted; for this is equivalent to finding that the facts, though true, involve no criminality. But a prisoner may be found guilty of a crime of less 8 degree than that charged, though never of one of a higher degree, or of one dif- ferent in kind — e. g. under a charge of desertion can be found absent without leave, but never desertion under a charge of absence without leave ; nor under a charge of theft, can absence without leave be found, otherwise the prisoner might be convicted of a crime of which he has had no notice, and against which, consequently, he has had no opportunity of defending himself. 10. Army Regulations, ^ 873. "The legal punishment for soldiers by sen- tence of a Coiu-t Martial, according to the offence and jurisdiction of the Court, are: death, corporal punishment by flogging, confinement, confinement on bread jind water diet, solitary confinement, hard labor, ball and chain, forfeiture of pay and allowances, discharges from service, and reprimands. Solitary confinement, or confinement on bread and water, shall not exceed fourteen days at a time, with the intervals between the periods of such confinement not less than such periods, and not exceeding eighty-four days in one year." The punishment by flogging is abolished. Act of Congress, approved 13th April 1863. All oflScers and soldiers convicted of desertion " shall suffer death, or confinement in a penitentiary, with or with- out hard labor, for a period not less than one year or more than five, or such other punishment, not inconsistent with the provisions of this act, as the Court Martial or Military Court may determine." Army Regulations, ^ 874. " A Court Martial cannot assign and make over the pay of a soldier to any other person." * * « * * Guard duly, one of the most honorable and responsible a soldier can perform, should not be degraded into a punishment. In accordance with the usages and the regulations of the service, non-com- missioned officers should be reduced to the ranks whenever sentenced to confine- ment, hard labor, or ball and chain. The punishments applicable to officers are : death, cashiering or dismissal, sus- pension from rank and pay, confinement, or reprimand, either public or private. Article of War, No. 85. " In all cases where a commissioned officer is cashiered for coAvardice or fraud, it shall be added in the sentence, that the crime, name and place of abode and punishment of the delinquent be published in the newspapers in and about camp, and of the particular State from which the offender comes." The sentence of death can be passed only in such cases where it is expressly authorized by the Articles of War ; and in such cases it is necessary that two- ^ thirds of the members of the Court concur in the sentence, and that the record should show such concurrence. But, except in cases under the 55th Article of War, and under § 2 of the act establishing the Articles of War, where the penalty of death is absolutely fixed, and no discretion allowed to the Court, it is not re- quired that two-thirds should also concur in the finding. In the cases men- tioned, it is necessary that the record should show such concurrence in the finding. It being prohibited to disclose the vote or opinion of any member of the Court, it is improper to spread the votes on the record, or to state that the finding or sentence was unanimous. I A spy, and one guilty of mutiny accompauied with loss of life, are generally hanged. Deserters, &c. are generally shot. The mode, however, of executing a death sentence (whether by shooting or hanging)«nay in all CHses be declared in the sentence. Under the Regulations, the pay and allowances of oflficors and soldiers absent without authority, are forfeited ; and the pay forfeited by the sentence of a Court. is that which subsequently accrues. The imposition of illegal punishments, e. g. bucking, gagging, &c., is equiva- lent to inflicting none, as they must be remitted. The sentence should be precise, clear, explicit and certain, without any abbre- viations, and with nothing left to inference. " The forfeiture of so much pay as will cover the expenses of apprehension and return to the regiment," is void for uncertainty. The Court should ascertain by testimony, and fix the amount forfeited. 11. A Court Martial deliberates always with closed doors, and the record must show that it was cleared for deliberation. 12. At any time previous to the final adjournment, the case being still in its possession, a Court Martial can modify or altogether change the sentence already passed by it. 13. When a cause is remanded for revision, no additional testimony can be heard, and no member absent from the original trial can now take his seat. As far as practicable, all the members present at the trial should be present at the revision. 14. No Court Martial will adjourn without day, except by order from these Head Quarters. Having concluded its business, or being reduced below the mi- nimum (five members), it will adjourn to meet upon the call of the President <»r Judge Advocate, and report the fact to these Head Quarters, the members retur»«- ing to their commands. * Being a member of a Court gives an officer no right to h-uve his coinniiind. If the Court adjourn in consequence of a march, he will re.sunic hi.s ducies wifh his command. ^ "When a Court adjourns for three days, the Judge Advocate shall report the fact to the Commander of the post or troops, and the members belonging to the command will be liable to duty during the time." Army Regulations, $ 881. Members of Courts Martial are not excused irom their duties as such, until ieved by the authority appointing the Court. Details for Courts Martial have cedence over all other duties, except those on the battle field ; for which tem- 'ry adjournments will be made. No member can be excused from the duties ^ Court by other details, unless regularly relieved by the authority ordering urt. In all instances where members are absent from sittings of the Court, aes of absentees will be reported in the proceedings, with cause of ab- 'xeneral Orders, No. 10, Head Quarters Army Northern Virginia, current ners should be tried separately, unless their ofFeac© is in its nature <)rred to have been jointly committed. 2 V 10 16. The procoedinj^s in each case will be made np separately, and endorsed ap follows (say): "General Court Martial Troceedinfrs, Camp of Anderson's Division, Special Orders, No. I'i8, Head Quarters Army Northern Virginia. Private M N, Co.jA, 1st Va. Regiment." Cases will be sent in weekly. *o^ Sufficient space will be left on the page containing the sentence, for t w order approving or disapproviiig of the proceedings, viz : cither to be written at tho^ foot of such page, or endorsed on it. The signatures of the Preisident and the Judge Advocate will be immediately at the foot of tlie sentence.* The special attention of the Judge AdATtc^te and of the members of the Courts is directed to Art. XXXVIII of the Army Regulations, and to the Articles of War. By command of General R E. Lkk. H. K. YQUNG, J. A. General. J I Hollinger Corp. pH8.5