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DIGEST 



OF 



DAVIS' Military Law 



OF THE 



UNITED STATES 

. AND 

The Manual for Courts-Martial 

INCLUDING 

THE ARTICLES OF WAR 

REVISED TO AUGUST 29, 1G1.6 



EY 

H. G. BALL 

First IvI^ut^nant of Infantry 



1917 

Franklin Hudson Publishing Company 

Kansas City, Mo. 



14 1^"' 



oo 



Copyright ] 9 17, by 

FRANKLIN HUDSON PUBLISHING CO., 

Kansas City, Mo. 



PREFACE. 

This little compilation has been prepared for the 
purpose of presenting succinctly certain basic facts of 
Military Law and the procedure of courts-martial which 
the lapse of time frequently renders hazy. It consists 
of a Digest of Davis' Military I^aw of the United States, 
of Questions and Answers on the Manual for Courts^ 
Martial, and the Articles of War as revised to August 
29, 1916. Paragraph topics ^re identical with those in 
the original. The number preceding each paragraph cor- 
responds to the number of the page on which may be 
found the same subject in the origmal. 

For those who may be said to have graduated in 
military law the information contained in the following 
pages will be found useful as an aid to the memory in 
quick preparation for an examination. It is hoped this 
little work may serve the convenient end of reducing to 
a minimum the drudgery of reading many pages of subject- 
matter with which the student, is already presumed to 
be familiar. 



366700 



TABLE OF CONTENTS. 



Page 

Chapter I. Introductory 5 

Chapter II. Military Tribunals; Courts-Martial, 

Their Ork^n and Function 9 

Chapter III. The Constitution of Courts-Martial; 

The General Court-Martial 10 

Chapter IV. The Composition of Courts-Martial .... 12 

Chapter V. The Jurisdiction of Courts-Martial 13 

Chapter VI. Arrest and Confinement; The Arrest 

OF Officers 17 

Chapter VII. Charges and Specifications 18 

Chapter VIII. The Incidents of the Trial 20 

Chapter IX. Punishments 36 

Chapter X. The Record 40 

Chapter XI. The Reviewing Authority 41 

Chapter XIII. Courts of Inqi iry 44 

Chapter XIV. Miijtary Boards 45 

Chapter XV. Evidence 47 

Chapter XVI. Martial Law 68 

Chapter XVII. Habeas Corpus 72 

Chapter XIX. The Articles of War 74 

Questions and Answers on Manual for Courts-Martial. 85 
Questions and Answers on General Order No. 70, War 

Department, 1914 101 

The Revised Articles of War , 105 



Military Law of the United States. 



CHAPTER I. 

2. Origin and History. — In great part derived from 
rules of discipline in the British Army at the outbreak of 
the American Revolution. These rules had the following 
origin and development: 

2. From Norman Conquest to Accession of James I . 
— During this period rules for government of military 
forces were established by the king and enforced by the 
[following tribunals: 

(a) Constable's and Marshal's Court; 

(b) Court of Chivalry. 

The last intruded on the jurisdiction of the common law 
and ceased to exist in the reign of Henry VIII. 

2. Military Law Subsequent to the Revolution of 
1688; Mutiny Act. — All matters affecting discipline not 
provided for in the Mutiny Act (authorized trial of mutiny 
and desertion by court-martial) were left to be regulated 
by the sovereign as commander-in-chief, in accordance 
with the body of rules called "Articles of War." In 1879 
the Mutiny Act and the Articles of War were merged into 
the Army Discipline Act, re-enacted in 1881. 

3. Mutiny Act ; Articles of War.— Between 1689 and 
1881 military discipHne in England was regulated by: 



6 Digest of Davis' Military Law of the U. S. 

(a) Mutiny Act: statutory in character; con- 

tained more important disciplinary pro- 
visions and also power to appoint mili- 
I tary tribunals. 

(b) The Articles of War, issued by the sover- 

eign, were non-statutory and contained a 
great body of rules for the government 
and discipline of military forces. 
4. Classification of Military Law. — As a considerable 
part of the military law of the United States is derived ' 
from usages and customs of the service, these laws are 
classified, according to form, into written and unwritten 
laws. 

The written law consists of: 

(a) Enactments of Congress Respecting Mili- 
tary Establishment. — Rules and Ar- 
ticles OF War. — A body of statutory 
rules, enacted under authority of the 
Constitution, and contain the greater 
part of the military law of the United 
States. Other enactments : Revised Stat- j 
utes and Statutes at Large. 1 

Distinction Between Military and 
Martial Law. — Military Law is, in 
part, statutory and regulates the conduct 
of military persons at all times within as 
well as without territorial jurisdiction of 
the United States. It ' ' follows the flag, ' ' 
not only in time of peace, but in time 
of war. 
Martial Law is not statutory in character, 



and the Manual for Courts-Martial 7 

and always arises out of strict military 
necessity. It comes into being in hos- 
tile territory in time of war or in a part 
of the United States territory where the 
civil authority is unable to exercise its 
functions. 

(b) Decisions of Courts. — The Federal courts 
• interpret laws; their decisions are of high- 
est authority upon the subjects to which 
they relate. 

(c) Decisions of the President; Opinions of the 

Attorney General, of the Secretary of 
War, and the Judge-Advocate General, 
etc. 

6. Army Regulations. — Next in authority to (a) and 
(b) above are the General Regulations and Standing Or- 
ders of the Army — administrative rules relating to mil- 
itary affairs issued by the President. They have the 
obligatory force of law, but shall not conflict with the en- 
actments of Congress. 

7. Conformity to Statutes. — Army regulations are 
executive or administrative rules and directions as dis- 
tinguished from statutes. 

Regulations, like statutes, are intended to operate 
in the future. 

8. Classification. — Regulations are classified: 

(a) Those which have received the sanction of 
Congress; Army Regulations. 

(6) Those made pursuant to and in aid of a 
statute; examination and promotion of 



8 Digest of Davis' Military Law of the U. S. 

enlisted men; executive order prescrib- 
ing limits of punishment. 

9. Military Orders. — Orders are authoritative direc- 
tions, respecting the military service, issued by military 
commanders with a view to regulate the conduct of mili- 
tary persons, or control the movements or operations of 
individuals or organizations under their several commands. 

10. Unwritten Military Law, the Custom of War, 
and the Customs of Service. — Unwitten military law is 
made up of customs of the service or of ^Hhe custom of 
war.'^ It is followed in cases in which the written law is 
silent or to which its provisions do not apply. Where 
sentence is discretionary, a court-martial may impose any 
punishment sanctioned by the custom of the service. 

10. Conditions Essential to the Validity of a Custom 
of the Service. — Usage is an act or practice which, by 
constant and regular repetition, has gradually acquired 
the force of law. 

Custom applies to the legal sanction developed by 
long-continued adherence to a particular usage, and must 
fulfill the following conditions: 

(a) It must be long continued; 
(6) It must be generally known and iavariably 
observed by those who are subject to its 
operation ; 
(c) It must be compulsory; 
{d) It must not be in opposition to the terms of 
a statute. 
12. Usages. — The fact that usages exist can never 
be pleaded in justification of conduct otherwise criminal, 
nor relied upon as a complete defense in a trial by court- 
martial. , 



and the Manual for Courts-Martial 
CHAPTER II. 



Military Tribunals; Courts-Martial; Their 
Origin and Function. 

14. The Earl Marshal. — The earl marshal was a 
military officer next in rank to the constable, and his 
duties resembled those now performed by the Adjutant 
General. When the office of constable ceased to exist, 
his duties were performed by the earl marshal, and the 
court of the constable came to be known as the ^'marshal's 
court '^ or, in the modern form, as the ^'court-martial.'^ 

15. Courts-Martial, Their Authority and Function. 
— Military Law is enforced by courts-martial. Their 
sentences are in the nature of recommendations merely 
until approved by reviewing authority. 

15. Courts-Martial Executive Agencies. — Courts- 
martial are not part of the judiciary of the United States, 
but simply instrumentalities of the executive power. 
They are creatures of orders. Their judgments are not 
subject to be appealed frcan, set aside, or reviewed by 
any civil court. 

1 6. Military Tribunals Courts of Honor. — They try 
many accusations based upon acts unknown to civil courts 
as criminal offenses. 

1 6. Classification. — Courts-martial, according to 
jurisdiction, are classified* 

(a) General Courts-Martial; 

(b) Inferior Courts - Martial — Special Courts- 

Martial and Summary Courts. 



10 Digest of Davis' Military Law of the U. S. 



CHAPTER III. 



The Constitution of Courts-Martial; The General 
Court-Martial. 

18. Military Commanders. — The following are em- 
powered to appoint general courts-martial: 

(a) The President; 

(b) The commanding officer of a territorial di- 

vision or department; 

(c) The Superintendent of the Military 

Academy; 

(d) The commanding officer of an army, field 

army, army corps, a division, or separate 
brigade; 

(e) Any commanding officer when so empow- 

ered by the President. 
Except in certain cases, an officer or soldier cannot 
demand a court-martial in his own case. 

1 8. Nature of Authority. — The authority to order a 
court-martial is an attribute of command and cannot be 
delegated to a subordinate. 

19. Appointing an Officer as Accuser or Prosecutor. 
— No officer is eligible to sit as a member of a court-martial 
when he is the accuser or a material witness for the 
prosecution. 

Where a commander initiates a charge out of a hos- 
tile animus toward the accused or a personal interest ad- 
verse to him, he is deemed an ^^ accuser'' or ^^ prosecutor.' ' 



and the Manual for Courts-Martial 11 

THE INFERIOR COURTS-MARTIAL. 

23. The Special Court-Martial may be appointed 
by the commanding officer of a district, garrison, fort, 
camp, or other place where troops are on duty; or by the 
commanding officer of a brigade, regiment, detached bat- 
taUon, or other detached command ; or by superior au- 
thority when deemed desirable. 

25. The Summary Court may be appointed by the 
commanding officer of a garrison, fort, camp, or other 
place where troops are on duty, or by the commanding 
officer of a regiment, detached battalion, detached com- 
pany, or other detachment; or by superior authority when 
deemed desirable. 

25a. Power to Punish: 

(a) General courts - martial may impose any 
punishment authorized to be imposed by 
a military tribunal in the Articles of War. 
(6) Special courts-martial have power to ad- 
judge punishment not to exceed six 
months^ confinement or forfeiture of six 
months' pay, or both, and, in addition 
thereto, reduction in case of non-commis- 
sioned officers and first-class privates. 
(c) Summary courts have power to adjudge 
punishment not to exceed three months' 
confinement or forfeiture of three months' 
pay, or both, and reduction in addition 
thereto. 
When the summary court is also the commanding 
officer, punishment in excess of one month will not be 
executed until approval by superior authority. 



12 Digest of Davis' Military Law of the U. S. 



CHAPTER IV. 



The Composition of Courts-Martial. 

26. Composition in General. — Must be composed 
of commissioned officers on the active list. 

27. Courts-Martial for the Trial of the Militia.— 
Courts-martial for the trial of officers or men of the militia 
shall be composed of militia officers only. Officers of 
militia may sit on courts-martial for the trial of officers 
or enlisted men of the regular Army. 

27. Volunteers. — Courts-martial for the trial of vol- 
unteers must be composed of volunteer officers. 

27a. Number of Members. — General courts-martial 
are composed of from five to thirteen, inclusive. 

30. Composition of Inferior Courts-Martial. — Spe- 
cial courts are composed of from three to five, inclusive. 

38. Coimsel for Accused. — The accused is not en- 
titled as of right to counsel, but the privilege is invariably 
conceded, and where unreasonably refused, such refusal 
may constitute ground for disapproval of the proceedings . 

39. Counsel for Enlisted Men. — The privilege of 
counsel does not apply in summary court cases. 

41. Interpreters are entitled to pay and allowances 
of civilian witnesses. 

41. Clerks. — An enlisted man employed as stenog- 
rapher is entitled to five cents for each one hundred words 
taken in shorthand and transcribed. 



I'nd the Manual for Courts-Martial 13 



CHAPTER V. 



The Jurisdiction of Courts-Martial. 

42. Sources. — The jurisdiction of courts-martial is 
conferred by the Articles of War and other similar en- 
actments of Congress. 

42. Military Jurisdiction of Courts-Martial is 
exclusively criminal in character and has no jurisdiction 
over property or property interests. It is exclusive as to 
military offenses. 

43. Concurrent Jurisdiction. — Civil and military 
courts can never have it in its strict sense. 

43. Classification. — Military jurisdiction, according 
to its relation to : 

(a) Place, 

(6) Time, 

(c) Persons, or 

{d) Offenses. 
43. Jurisdiction as to Place. 

(a) Not being restricted as to territory, it cov- 
ers all military offenses, committed by 
military persons, within or beyond the 
territorial limits of the United States. 

Q)) Restriction upon Convening Author- 
ity. — Convening officers may convene 
courts-martial only within their terri- 
torial command; the President and Sec- 
retary of War, at, any place within the 
jurisdiction of the United States. 



14 Digest of Davis' Military Law of the U. S. 

44. Jurisdiction in Point of Time. 

(a) The Statutes of Limitation operate to de- 
prive the courts of power to try certain 
offenses when a period of time, expressly 
stated in the statute, has elapsed since 
their commission. To become effective, 
it should be pleaded and proved. 

(6) Limitations at Military Law. — Two Stat- 
utes of Limitation form part of the mili- 
tary law of the United States. One is, 
no person shall be liable to trial and pun- 
ishment for an offense committed more 
than two years before issuing the order 
for such trial, unless he is not amenable 
to justice during that period by reason 
of absence from military jurisdiction. 

(c) The Statute of Limitation in Desertion is 
the other and refers to time of peace only. 
46. Jurisdiction as to Persons. 

(a) Amenability in General. — No person can be 
subjected to military jurisdiction without 
his consent, as evidenced by his volun- 
tary entrance into the military service. 

(6) To What Persons Applicable. — Military 
law in general is applicable to military 
persons alone. 

(1) The regular and volunteer forces of 

the United States. 

(2) The MiHtia is composed of all able- 

bodied male citizens between 18 and 
45 years. 



and the Manual for Courts-Martial 15 

(3) Retainers to the camp, camp-follow- 

ers, and civilian employees. The 
statute is restricted in its operation 
to persons accompanying armies in 
the field in time of war. 

(4) Relieving or giving intelligence to 

the enemy; and certain persons be- 
come subject to military jurisdic- 
tion as a consequence of commit- 
ting certain offenses in time of war, 
as: those who relieve the enemy 
with money, victuals, ammunition, 
or knowingly protect him; those 
who hold correspondence with or 
give intelligence to the enemy; 
spies. 

(5) Inmates of Soldiers' Homes and of 

the National Home for Disabled 
Volunteer Soldiers are subject to 
the Rules and Articles of War. 

(c) The Period of Amenability begins with the 

voluntary entry into the service. 

(d) Enlistment consists in the execution of a 

contract) to which the United States and 
the enlisted man are parties. 

(e) Termination of Liability. — The enlistment 

contract is normally terminated at the 
expiration of the period of enlistment by 
a formal discharge. 
(/) Jurisdiction Cease,s After Expiration of 
Service. — The enlisted man ceases to be 



16 Digest of Davis' Military Law of the U. S. 

amenable to military jurisdiction for of- 
fenses committed while in the service aft- 
er he has been separated therefrom and 
has become a civilian. 

59. Jurisdiction as to Offenses. — It embraces of- 
fenses defined in the Articles of War, and the offense of 
mihtary persons trading with the enemy, and that of 
fraudulently enlisting in the service of the United States. 

60. Persons Exclusively Triable by General Courts- 
Martial. — General courts-martial have exclusive jurisdic- 
tion over officers and cadets; over enlisted men they have 
concurrent jurisdiction with the inferior courts, and ex- 
clusive jurisdiction over all offenses punishable capitally. 

60a. Appellate Jurisdiction. — The jurisdiction of 
courts-martial, being final, cannot be subject of appeal to 
a higher military tribunal or to a civil court. 



and the Manual for Courts-Martial 17 



CHAPTER VI. 



Arrest and Confinement; The Arrest of Officers. 

61. Arrest of Commissioned Officers. — The arrest 
may be accomplished by the commanding officer in per- 
son; usually by a staff officer, by means of oral or written 
order. Only the commanding officer can place officers in 
arrest. The court cannot interfere to cause a close arrest 
to be enlarged. 

Note: An arrest is not necessarily an essential 
preliminary to trial. 

62. Status of Arrest. — An officer in arrest is without 
power to perform any duties incident to his rank or station. 
He has no right to demand a court-martial. All his re- 
quests are to be made in writing. The status of arrest 
does not affect his right to receive pay. 

64. Restrictions upon the Durations of Arrests. — 
Officers in arrest are served with a copy of the charges 
within eight days after the arrest; trial to follow within 
ten days after arrest, unless prevented by the necessities 
of the service, when an additional period of thirty days 
is allowed, making a period of forty days after arrest. 



18 Digest of Davis' Military Law of the U. S. 

CHAPTER VII. 



Charges and Specifications. 

69. The Charge is the instrument in which the 
military offense against an accused person is set forth. 
A miUtary charge properly consists of two parts — the 
technical '^ charge'^ and the ^^specification.'' The former 
designates by its name the alleged offense, the latter sets 
forth the facts of such offense. 

70. The Specifications should fulfill the following 
* conditions : 

(a) The offender to be described as a member 

of a military establishment or as amena- 
ble to military discipline. 

(b) The facts of the offense should be set forth. 

(c) An allegation of criminal intent by the use 

of words — willfully, knowingly, etc. 
It is held to be sufficient as a legal basis for trial and 
sentence if the charge and specification, taken together, 
amount to a statement of a military offense. 

71. Exclusion of Evidence from Specifications. — 
The specifications should contain facts constituting the 
offense, not evidence by which such facts are supported. 

71 . General Terms ; Specific Articles. — A charge ex- 
pressed in too general terms is faulty and imperfect, so 
too is a charge expressed in the alternative, as either, 
under Article 83 or Article 94, is irregular and defective . 

Where the offense is clearly defined in a specific ar- 
ticle, it is improper to charge it under another specific 
article. 

72. Charges Under Several Forms. — The prosecu- 



and the Manual for Courts-Martial 19 

tion may charge an act under two or more forms where it 
is doubtful under which it will more properly be brought 
by the testimony. 

72. Allegations as to Persons. — The accused should 
be described by his true name, rank, and station in the 
military service. 

75. Joint Charges. — To warrant joining of several 
persons in the same charge and trying them together, the 
offense must be such as requires a combination of action, 
committed by the accused in concert or in pursuance of 
a common intent; concert is not necessarily established 
by the mere fact of their committing the same offense to- 
gether at the same time. 

76. By Whom Preferred. — By any officer. The fact 
that he is himself under charges or in arrest does not 
disqualify him from preferring charges. 

79. Action of Post Commander. — Upon receipt ot 
charges, he is required to personally investigate them to 
satisfy himself — 

(a) Whether the case is one in which a trial is 

necessary to the interests of discipline; 
(h) If he believes trial necessary, whether the 
evidence will support a conviction. 
A summary court is without jurisdiction to try a 
non-commissioned officer if he objects to such trial, save 
with the authority of the officer competent to order his 
trial by general court-martial. 

80. Service of Charges upon the Accused. — It is the 
duty of the judge-advocate to furnish the accused with a 
copy of the charges within a reasonable time previous to 
trial. 



20 Digest of Davis' Military Law of the U. S. 



CHAPTER VIII. 



The Incidents of the Trial. 

82. Meeting of Court-Martial. — If less than a statu- 
tory quorum is present, the court cannot transact business, 
but may adjourn from day to day to await the arrival of 
absent members. 

Note: Communications from convening authority as 
such should be made to the president as its organ; com- 
munications relating to the conduct of the prosecution 
should be made to the judge-advocate. 

85. Clerk to Assist the Judge- Advocate. — ^The con- 
vening authority may detail an enlisted man to assist the 
judge-advocate of a general court-martial in the prep- 
aration of the record when the services of a reporter 
are not deemed necessary. 

CHALLENGES. 

85. Procedure.— ;Only one member at a time will 
be challenged. 

85. Nature of the Right. — This is restricted in two 
particulars : 

(a) A member may be challenged only for 

cause stated to the court. 

(b) ''Challenges to the array'' — i. e., objection to 

the entire membership — are forbidden. 
Note: There is no authority for challenging a judge- 



and the Manual for Courts-Martial 21 

advocate. He is disqualified as such when personally in- 
terested as accuser or prosecutor. 

The court cannot excuse a member in the absence of 
a challenge. 

A member not challenged, but considering himself 
disqualified, can be relieved only by application to the 
convening authority. 

It is not necessary for members to withdraw on being 
challenged, but it is customary. 

86. Classification of Challenges. 

(a) Principal Challenge. — A challenged mem- 
ber is excused from sitting when ground 
of challenge has been established. 

(6) A Challenge to the Favor. — One alleging 
bias, prejudice, or interest to exist. It 
may or may not be sustained. 

87. Waiver of Challenge. — As a rule, objection to 
the competency of a member must be brought before ar- 
raignment, and if the accused is aware of it at that time 
and fails to bring it forward, he will be deemed to have 
waived his right of challenge. 

Should ground for objection be developed at a later 
stage, it being unknown to the accused before arraign- 
ment, the court may permit the objection to be raised at 
any stage of the trial. 

87. Challenges by Judge-Advocate may be made in 
behalf of the United States. 

. 87. Incompetency, How Established. — Incompe- 
tency is established by: 
(a) Voluntary admission of the member; 
(6) Testimony of witnesses; 



22 Digest of Davis' Military Law of the U. S. 

(c) Examination of a member on his voir dire, 

88. The Accuser; Material Witnesses. — It is suf- 
ficient ground to challenge a member if he is the accuser 
or a material witness. The mere fact that he is a witness 
or preferred the charges is not generally sufficient ground. 

89. Opinion, to disqualify, must be positive and 
decided in character and formed after deliberation upon 
facts in the case and conversation with witnesses or 
reports of testimony. 

89. Bias or Prejudice; Rank of Member. — An offi- 
cer cannot successfully challenge a member merely be- 
cause of being of a rank inferior to his own. 

CONTINUANCES. 

90. Procedure. — A motion for a continuance must 
be supported by evidence, usually in affidavit form. 

90. Causes for Postponement. — In advance of the 
trial, application for postponement should be made to 
the convening authority. 

THE ARRAIGNMENT. 

' 96. Pleadings. — A pleading is a statement, in log- 
ical and legal form, of facts constituting a particular 
cause of action or ground of defense. Charges and speci- 
fications aie part of pleadings in a case, to which the ac- 
cused is required to make answer, known as the ^'plea.'^ 
If the plea is '^guilty'' or '^not guilty,'^ the. accused is ,• 
said to plead the '^general issue. '^ ' 

The reading of the charges and ^^ pleas'^ thereto con- i 
stitute the arraignment, during which the judge-advo- 
cate, accused, and counsel stand. 



and the Manual for Courts-Martial 23 

96. Classification of Pleas as to their nature and 
effects: 

(a) To the jurisdiction; 

(b) In bar of trial; 

(c) In abatement; 

(d) To the ^^ general issue." 

96. Pleas to the Jurisdiction. 

(a) The court must have been properly con- 
stituted; 

(6) The accused must be subject to its juris- 
diction; 

(c) The crime must be a military offense. 

97. Objections to Constitution of the Court. — It 
may be alleged that the convening officer is without au- 
thority to convene the court. 

97. Convening Officer as Accuser. — Where he him- 
self initiates the charge out of a hostile animus toward 
the accused or a personal interest adverse to him, he is 
deemed an ^^ accuser" or ^'prosecutor." 

98. Amenability of Accused to Trial. — The person 
accused should be amenable to military jurisdiction. 
Civilians are amenable to trial by court-martial in time 
of war in the immediate theater of operations only. 

100. Plea in Bar of Trial admits jurisdiction as to 
class of cases and general amenability of the accused, but, 
for reasons stated, denies the right of the court to try the 
particular case before it. A plea in bar of trial is appro- 
priate in the following cases: 

1 00. A Previous Acquittal or Conviction of the Same 
Offense. 



24 Digest of Davis' Military Law of the U. S. 

(a) The accused, having been duly convicted 
or acquitted, cannot be subjected to a 
second military trial for the same offense 
except by and upon his own waiver and 
consent. 

102. New Trials. 

(6) New trials are only authorized where sen- 
tence has been disapproved by the re- 
viewing authority and the accused has 
asked for a second trial. 

After sentence has been approved and has 
taken effect, the granting of a new trial 
is beyond any power. 

Where an accused, who has been tried by 
[ a civil court for a criminal offense, is 

brought to trial by a court-martial for a 
military offense involved in a criminal 
act, he cannot plead ^^a former trial'' 
(and vice versa), 

103. Pardon. 

(c) A pardon is an act of grace, which exempts 
the individual upon whom it is conferred 
from the punishment which the law in- 
flicts for the crime he has committed. 
A pardon must be pleaded — that is, sub- 
mitted to the court — in accordance with 
the rules regulating the production of 
documentary evidence, in order that the 
court may give it effect in support of a 
plea. 



and the Manual for Courts-Martial 25 

105. Pardoning Power, How Exercised. — First, hj 
the proclamation of pardon or amnesty, which originates 
with the President, and has been issued in several in- 
stances in behalf of deserters and absentees without leave ; 
second, by the remission of a military sentence, which 
relieves the person from punishment or the unexecuted 
portion of a sentence; third, the offense may be par- 
doned — that is, condoned — before prosecution has com- 
menced, by restoration to duty, without trial. 

106. Constructive Pardon is a condonation of an 
offense by the action of a military superior, the effect of 
which is to abandon or desist from the prosecution of a 
particular offender. Where a military person who is 
under charges is released from arrest or confinement and 
restored to duty by authority competent to order his trial, 
there is said to be a '' constructive pardon," which may 
be pleaded in bar of trial. A constructive pardon will or- 
dinarily be proved by testimony of witnesses as to its 
source and authority. 

PLEAS IN ABATEMENT. 

1 07. Nature and Character. — It is a motion to 
abate — that is, to set aside — a particular specification to 
which it is addressed, on the ground that it contains some 
defect, which is alleged to be fatal to the maintenance of 
the action. Such pleas serve only to defer a particular 
trial and are not favored in military practice. 

Pleas in abatement usually relate to misnomers in 
the specifications ; to false additions, as when the accused 
is incorrectly described ; and to cases described by the term 
idem sonans, where the name of the accused in the plea 



26 Digest of Davis' Military Law of the U. S. 

and specifications, though spelled differently, are sub- 
stantially identical in sound. 

It is not essential to state in a specification the full 
Christian name; only such name or initial need be given 
as will unmistakably identify the party. A misnomer 
in a charge consisting of an erroneous middle name or 
initial may be disregarded without affecting the validity 
of the finding. 

108. Where Charges upon Which an Accused Per- 

son Is Arraigned Differ Materially from 
Those Served upon Him. 
(a) This may be taken advantage of by a plea 
in abatement. 

109. Name of Accuser or Prosecutor. 

(6) The accused is entitled to know the name 

and designation of the accuser in the case. 

1 09. Other Objections to Charges, How Disposed of. 

(c) Objections to charges in matters of form 
should be taken advantage of by pleas 
in abatement. Such are objections to 
specifications, as '' inartificial,'' 'indefin- 
ite,'' or '^ redundant"; or as misnaming 
the accused or misdescribing him as to 
his rank or office; or as containing insuf- 
ficient allegations of time or place, etc. 
Where the accused pleads ''guilty" or "not 
guilty" to a specification in which he is 
incorrectly named or described, such plea . 
is an admission of his identity with the; 
person thus designated. 



and the Manual for Courts-Martial 27 

109. Failure to Serve Charges. 

(d) An accused person is entitled to receive a 
copy of the charges in sufficient time to 
enable him to secure attendance of the 
witnesses and prepare his defense. 

110. Procedure in Respect to Pleas. — A plea that 
is substantiated may operate to cause the charge or spec- 
ification to which it is addressed to be stricken out or 
materially amended. 

The matter should be logically and concisely stated 
by the accused in support of his plea, which should be 
submitted in writing. 

The accused is entitled to be first heard in its 
support. 

111. Statutes of Limitation in criminal cases are 
enactments which, if pleaded in defense, operate to de- 
prive the State of the power to try and punish an offender 
after the lapse of a specific period since the offense was 
committed. 

113. Demurrers. — The office of a demurrer is to 
raise an issue of law, as distinguished from the issue of 
fact, which arises when resort is had to any of the special 
pleas already mentioned; and the issue of law so raised 
must be decided by the court before the trial can be 
further proceeded with. A specification to which a de- 
murrer is addressed must be defective in some essential 
respect in regard to the definition or description of the 
particular military offense, or must fail to set forth facts 
sufficient to constitute an offense at military law. 

114. Judgment on Demurrer. — If the demurrer is 
sustained^ the accused is not required to plead to the 



28 Digest of Davis' Military Law of the U. S. 

particular specification to which the demurrer has been 
addressed. 

THE GENERAL ISSUE. 

114. Pleas to the General Issue. — When any of the 
several pleas already described have been submitted in 
behalf of the accused and have been decided adversely, 
the accused is required to plead to the general issue as 
distinguished from the special issues raised by pleas in 
bar, etc. 

115. Statements Inconsistent with Plea of Guilty. 
— In such a case the court will counsel accused to plead 
^'not guilty,'^ and, this plea being entered, will proceed 
to a trial. 

115. Withdrawal of Plea. — A court - martial may 
permit the accused to withdraw a plea of ^^not guilty'^ and 
substitute another, and vice versa. 

115. Introduction of Testimony After a Plea of 
Guilty. — Where the plea is ^'guilty,'' and where the speci- 
fications do not fully set forth the facts of the case, the 
prosecution should be instructed by the court to introduce 
evidence of the circumstances of the offense, for the 
reason that the court may be better enabled to estimate 
the measure of the punishment, and further, that the re- 
viewing authority may be better enabled to comprehend 
the entire case; but it does not apply where sentence is J 
not discretionary with the court. 

Wherever, in connection with a plea of ''guilty,'' a 
statement is made by the accused from which it is to be 
gathered that evidence exists constituting a defense to the 



and the Manual for Courts-Martial 29 

charge, the court will call upon the judge-advocate to 
introduce such evidence. 

118. Nolle Prosequi. — The United States, through 
the Secretary of War, or through the convening au- 
thority, may require or authorize the judge-advocate to 
enter a nolle prosequi in a case on trial — that is, discon- 
tinue the prosecution as to any particular charge or speci- 
fication, or to all of them. 

THE HEARING. 

The Prosecution. 

1 1 9. Introduction of Witnesses. — Note : When 
the judge-advocate himself takes the witness-stand, he is 
sworn by the president of the court. 

120. Objections to Competency. — Witnesses are not 
permitted to appear in court, or to listen to testimony 
(save in case of an expert), until they have testified. 
While waiting to give their testimony, witnesses are 
separated, if need be. 

120. Methods of Examination. — The first question 
is put to determine the identification of the accused; the 
second, to show that the witness was so placed as to per- 
sonally know the facts; and the other interrogatories, to 
elicit all the facts. 

After cross-examination, the witness may be re- 
examined by the judge-advocate, after which he may be 
re-examined by the accused. 

121. Leading Questions. — In the examination in 
chief, leading questions — that is, questions which suggest 
answers which it is desired to have the witness make, or 



30 Digest of Davis' Military Law of the U. S. 

which, embodying a material fact, may be answered by 
^^ Yes'' or ''No" — if objected to by the opposite party, are 
rejected by the court. However, they may be permitted 
during cross and direct examinations in respect to matters 
introductory to the material part of the inquiry, or when 
the witness appears to be hostile to the party calling him, 
or makes an omission in his testimony through want of 
recollection which a suggestion may assist. 

122. Objections to Testimony. — A question may be 
objected to upon the ground that it is leading, irrelevant, 
or that the answer called for is hearsay or in the nature 
of an opinion. 

122. Questions by the Court, as a whole, are not 
subject to objection. Questions by a member may be 
objected to. 

123. Conduct of Prosecution. — The judge-advocate 
should advise the accused, when ignorant and unassisted 
by counsel, of his rights in defense. 

THE DEFENSE. 

Defenses. 

1 24. Nature and Character. — The matter offered by 
an accused in opposition to or in rebuttal of the case es- 
tablished by the prosecution is called the '' defense.^ ^ De- 
fense is complete where the testimony submitted in behalf 
of the accused is sufficiently strong to negative the allega- 
tions of the charges (not always necessary). 

The accused is entitled to acquittal where the prose- 
cution is unable to establish guilt beyond a reasonable 
doubt. 



I 



and the Manual for Courts-Martial 31 

124. Want of Criminal Capacity to commit crime 
may be due to any of the following causes : 

(a) Infancy. — Children under seven years of 
age. 

ih) Idiocy. — An idiot is a person mentally de- 
fective; idiocy is regarded in law as an 
absence of mind. A person born deaf, 
dumb, and blind is regarded as in the 
same state as an idiot. 

(c) Insanity or Lunacy. ^- Impairment of the 
mental faculties — casual and occasional, " 
rather than permanent, with periods of 
mental soundness, called '^ lucid inter- 
vals.'' 

1 25. Test of Capacity in Case of Insanity. — If the 
accused had the power to distinguish right from wrong, 
and the power to adhere to the right and avoid the wrong, 
he is responsible for the consequences of his act. 

126. Drunkenness. — Where it is shown that the 
accused became drunk in the company of a military su- 
perior, who drank with him or exerted no authority to 
prevent his indulging to excess, this fact should operate 
to mitigate the sentence. 

128. Ignorance or Mistake of Fact is voluntary, 
and not susceptible of being pleaded as a defense for crime 
when one by reasonable exertion might have acquired 
knowledge ot his act. 

Involuntary ignorance occurs where a man intending 
to do a lawful act does that which is unlawful. When 
admitted, it is held to affect the intent, and the burden 
rests upon the accused of showing want of knowledge. 



32 Digest of Davis* Military Law of the U. S. 

129. The Alibi is a term employed to describe that 
method of defense to a criminal prosecution in which the 
accused undertakes to show that he could not have com- 
mitted the offense, by evidence showing that he was in 
another place at the time of its commission. 

130. Testimony as to Character may be intro- 

duced — 

(a) In disproof of the particular offense with 

which the accused is charged; 

(b) With a. view to affect the punishment, as 

to kind or amount. 
The prosecution cannot attack the character of the 
accused till the latter has introduced evidence to sustain 
it and has thus pat it in issue. 

131. Member or Judge-Advocate as Witness. — The 
accuser or a witness for the prosecution is ineligible to sit 
as a member of the court. If that fact is not disclosed 
until the trial has been entered upon, it is sufficient ground 
of challenge, and the member should be excused when 
objected to. 

A member may testify as a witness for the defense. 

132. Accused as a Witness. — A sworn statement by 
the accused should not be admitted tn evidence by the 
court. 

132. Statements and Arguments. — An accused per- 
son may be permitted to reflect in his statement, with- 
in reasonable limits, upon the apparent animus of his 
accuser. 

Interlocutory questions are objections to witnesses 
on the ground of competence; to the admission, exclusion, 
or relevancy of testimony, etc. 



and the Manual for Courts-Martial 33 

135. Adjournments. — A court-martial is authorized 
to adjourn to the quarters, at the same post, of a sick 
witness, and there take his testimony. 

139. Contempt of Court is: 

(a) Direct or criminal contempt; the act oi 
omission constituting the offense must 
have taken place in the actual presence 
of the court itself; or, 

(6) Constructive contempt, which applies to 
similar conduct committed outside the 
presence of the court. 

140. Procedure. — When contempt has been com- 
mitted, the offending party is given an opportunity to be 
heard in explanation. If not satisfactory, the action 
taken is summary, a formal trial not being required; the 
punishment imposed- b}^ the court being carried into effect 
by the commanding officer of the post. 

140. The Finding. — In arriving at a finding, it be- 
comes necessary for members of a court-martial to ascer- 
tain, first, what is alleged against the accused, and, second, 
whether the allegations contained in the charges have 
been proved beyond a reasonable doubt. 

141. Reasonable Doubt is an honest, substantial 
misgiving, generated by the insufficiency of the proof; it 
is a doubt which reasonably flows from the evidence or 
want of evidence. 

141. Voting. — Where, upon the finding, the vote on 
a charge or specification is tied, the accused is, in law, 
found not guilty thereon. 

142. Basis of Finding. — No matter how many speci- 
fications there may be, it requires a finding of ^^guilty^' or 



34 Digest of Davis' Military Law of the U. 5. 

''not guilty^' on but one specification to support a similar 
finding upon the charge. 

144. Finding as to Lesser Kindred or Included 
Offense. — There may be a finding of '^not guilty'' as to the 
major or principal offense charged, and a finding of a 
lesser kindred and included offense. The most familiar 
instance is the finding of '' guilty of absence without leave ' ' 
under a charge of desertion. 

The converse of the proposition is not true, and a 
conviction of a graver offense in lieu of that charged is 
not sanctioned. 

THE SENTENCE. 
148. Mandatory and Discretionary Sentences. 

(a) A mandatory sentence is one determined 
in kind and amount by the express terms 
of a statute, and no other sentence may 
lawfully be imposed. 
(h) A discretionary sentence is one in which an 
appropriate punishment is determined by 
the court. 
156. Recommendations to Clemency are not part 
of the official record of trial and should not be incorporated 
with the record proper, but should be appended to or 
transmitted with the same as a separate and independ- 
ent paper. 

PROCEEDINGS IN REVISION. 

158. Revision of Findings and Sentence. — Findings 
and sentence are subject to revision and amendment so 
long as they continue in legal custody of the court. 



and the Manual fo/ Courts-Martial ^ 35 

159. Procedure in Revision. — When the record has 
been returned by the reviewing authority for correction, 
at least five members of the court who acted upon the 
trial and the judge-advocate must be present. It is not 
necessary that the accused be present. 

160. Publication and Execution. — The word 
^ ' month '^ employed in a sentence is to be construed as 
meaning calendar month. 

161. Cumulative Sentences. — A second sentence is 
to be regarded as cumulative upon the first and its execu- 
tion commences when the first is completed. 

1 62. Adding to Punishment. — No military authority 
can add to a punishment as imposed by a court-martial. 

A legal sentence of a court-martial, when once duly 
approved and executed, cannot be reached by a pardon, 
nor revoked, recalled, modified, or replaced by a milder 
punishment or other proceeding, either by the Executive 
or by Congress. 



36 Digest of Davis' Military Law of the U. S. 



CHAPTER IX. 



Punishments. 

163. Prohibited Punishments. — Military duty is 
honorable, and to impose it in any form as a punishment 
must tend to degrade it to the prejudice of the best inter- 
ests of the service. A sentence cannot impose ^' guard 
duty'^ or '^ extra duty.^' 

PUNISHMENTS. 

165. Death sentence requires a two-thirds vote. 

166. PubUcation. — When an officer has been dis- 
missed for cowardice or fraud and the sentence has been 
published, it shall be scandalous for an officer to associ- 
ate with him. 

Note: A sentence ^Ho be cashiered'^ is now equiva- 
lent to a sentence of dismissal. 

167. Disqualification for Office is no longer regard- 
ed as an appropriate penalty in cases of commissioned 
officers. 

167. Imprisonment. — An officer or soldier may be 
sentenced to a term of confinement merely, without the 
addition of '4iard labor. ^' Omission of the words ''hard 
labor '^ in the sentence of a court-martial shall not be con- 
strued as depriving the authority executing such sentence 
of the power to require hard labor in any case where it 
is authorized. 



and the Manual for Courts-Martial 37 

Confinement shall be* considered as commencing at 
the date of the promulgation of the sentence in orders . 

170. Confinement to Limits is recognized by cus- 
tom as an appropriate punishment for commissioned 
officers. 

171. Suspension from Rank includes suspension 
from command. It does not involve a loss of pay for 
the period of suspension, but it deprives the officer of the 
right to promotion for the period of suspension and of 
the right to select quarters. 

173. When Suspension Is Operative. — Suspension, 
like dismissal, takes effect upon notice to the officer of 
approval of the sentence officially communicated to him. 

175. Fines. — A fine is a pecuniary penalty imposed 
by a court-martial, requiring payment of a specific sum 
to the United States, and bears no relation to the pay of 
the offender. 

1 77. Forfeitures are pecuniary penalties which be- 
come operative — 

(a) By operation of law, upon conviction of 

certain military offenses; or, 
(6) In conformity to and in execution of the 
sentence of a lawfully constituted mili- 
tary tribunal. 
A forfeiture operates to retain from the offender the 
whole or a part of his current pay or allowances during 
a period of time expressly set forth in the sentence. 

A sentence of forfeiture of ^'all pay and allowances'' 
includes ''extra duty pay." 

178. Stoppages are administrative deductions of 
pay, made in pursuance of authority conferred by statute 



38 Digest of Davis' Military Law of the U. S. 

or regulation, with a view to reimburse the United States 
for stores or property purchased or used, lost or destroyed. 

Fines, forfeitures, and stoppages are not synonymous. 

179. How Stoppages Are Made. — Stoppages are 
usually entered upon the muster- and pay-rolls. If the 
rolls be signed without protest, such signing will operate 
as an implied waiver of objection to the justice or cor- 
rectness of the charge. 

ENLISTED MEN. 

183. Dishonorable Discharge terminates the serv- 
ice of a soldier, and his discharge should be dated as of 
the day on which approval of the sentence is officially 
published, or the order promulgating such approval is 
received, at the post where the soldier is held. 

185. Imprisonment; Confinement. — Such punish- 
ments may be executed — 

(a) In a State prison or penitentiary, when 

the offense of which convicted would, by 
some statute or by the common law, sub- 
ject such convict to such conviction and 
punishment; or, 

(b) In the United States Disciplinary Barracks, 

or at a military post, as a ^'general pris- 
oner ''; and, 

(c) By simple confinement, as a ^^ garrison pris- 

oner, ^^ in the guard-house. 

187. Confinement with Ball and Chain. — The sen- 
tence should set forth the weight of the ball, the length of 
the chain, etc. 

187. Solitary Confinement shall not exceed four- 



and the Manual for Courts-Martial 39 

teen days at one time nor be repeated until fourteen days 
have elapsed, and shall not exceed eighty-four days in 
one year. 

1 88. Execution of Sentence. — The confinement shall 
be considered as commencing at the date of the promul- 
gation of the sentence in orders. 

A sentence of confinement is executed by sending the 
party under proper guard to the place of confinement, 
duly designated, and at the same time transmitting to the 
officer in command a copy of the order publishing the 
sentence, together with such other papers as are required. 



40 Digest of Davis' Military Law of the U. S. 



CHAPTER X. 



The Record. 

192. Separate Record of Each Case Tried. — The 

record of each case should be complete in itself and sep- 
arate and distinct from every other record. 

193. Organization of the Court. — First essential, 
that there assembled at the time and place indicated in 
the order at least five of the officers detailed as mem- 
bers; second essential, that the convening order was read 
to the accused and that the privilege of challenge was 
extended to him. 

197. Copies of Records to Accused Persons. — The 
judge-advocate mails a carbon copy to the Judge-Advo- 
cate General of the Army, and the latter furnishes the 
same to the accused upon application properly made. 
The statute confers the right in case of general court- 
martial only. 



and the Manual for Courts-Martial 41 



CHAPTER XL 



The Reviewing Authority. 

200. Approval by President. — In ca^^es of sentences 
of death, dismissal, together with sentences respecting 
^^ general officers/' the President is the final reviewing 
officer. 

202. Power of Reviewing Authority — He cannot 
correct the record of the court by striking out any part of 
the finding or sentence, nor can he change the order in 
which the different penalties are adjudged by the court, 
nor can he add to the punishment imposed by the court. 

A military commander cannot delegate to an inferior 
or other officer his functions as reviewing authority of the 
proceedings or sentences of courts-martial. 

THE PARDONING POWER. 

Remission, Mitigation, and Commutation. 

204. The Pardoning Power. — The power to pardon 
offenses against the United States is vested by the Con- 
stitution in the President. 

A qualified forfn of the pardoning power, extending 
to remission or mitigation of sentences, is conferred by 
statute upon certain military commanders, who are au- 
thorized by law to carry into effect sentences of courts- 
martial. 



42 Digest of Davis' Military Law of the U. S. 

205. Effects of Pardons.— It is the effect of a full 
pardon to remove all penal consequences, except, of course, 
executed penalties and all disabilities attached to the 
offense or to the conviction or sentence. 

206. Continuing Punishments. — The pardoning 
power extends to continuing punishments or punishments 
which are never fully executed, remitting in each case the 
punishment from and after the taking effect of the pardon. 

Examples of continuing punishments : 

(a) The punishment of disqualification to hold 

military or public office. 
(h) Reduction in '^ files'^ in the list of officers or 

the offender's grade. 

206. Conditional Pardons. — Are granted upon a 
condition precedent or subsequent, as the President's 
proclamation of March 11, 1865, granting pardon to all 
deserters on certain conditions. 

207. Constructive Pardons. — The promotion of an 
officer while under arrest on charges has been viewed as a 
constructive pardon of the offense on account of which he 
has been arrested. 

207. Pardon Not Retroactive. — It cannot remit an 
executed punishment or restore an executed forfeiture 
resulting either by operation of law or sentence. 

208. Remission is a partial exercise of the pardon- 
ing power, relieving the person from a punishment or the 
unexecuted portion of a punishment, but not pardoning 
the offense as such. 

209. Mitigation is a form of pardoning power vest- 
ed in the reviewing authority, which authorizes him, if 
he deems a punishment too severe, to reduce it in quan- 



and the Manual for Coutts-Martial 43 

tity or quality without changing its species. Imprison- 
ment, fine, forfeiture, and suspension may be mitigated. 
210. Commutation is a form of conditional pardon, 
vested in the President alone and not shared with the 
reviewing authorities. Where sentence imposes death, 
dismissal, or dishonorable discharge, clemency can only 
be exercised by way of commutation. 



44 Digest of Davis' Military Law of the U. S. 



CHAPTER XIII. 



Courts op Inquiry. 

218. Object and Purpose. — A court of inquiry is an 
agency created by statute for the purpose of investigating 
questions of fact and of giving its opinion upon the merits 
of the case. It is not a court in the strict sense of that 
term; it cannot compel the attendance of witnesses nor 
require them to testify. 

218. Constitution and Composition. — A court of in- 
quiry is rarely convened by any less authority than that 
competent to convene a general court-martial ; it can only 
be convened upon application of the officer or soldier 
whose conduct is to be investigated. It is composed of 
one to three"^members. 

219. Challenges. — The right of challenge is ac- 
corded. Members of courts of inquiry are sworn, and the 
procedure is similar to that of courts-martial. 

220. The Record consists of two parts: 

(a) The testimony of witnesses, including docu- 

mentary evidence, arguments, and state- 
ments. 

(b) The report proper, consisting of a statement 

of the facts in the form of a narrative. 

221. Use of Record in a Subsequent Trial is au- 
thorized as evidence in cases not capital nor extending to 
dismissal of an officer, provided that the circumstances 
are such that oral testimony cannot be obtained. 



and the Manual for Courts-Martial 45 



CHAPTER XIV. 



Military Boards. 

225. Boards; Constitution, Powers, Etc. — A board 
is a committee of commissioned officers called together 
with a view to conducting an examination and, if called 
upon, to submit recommendations. Unless specially au- 
thorized, it cannot summon witnesses, nor can it swear 
witnesses or its own members. It may act upon evidence 
submitted in the form of affidavits. Affidavits, being 
ex parte in character, cannot be properly offered as evi- 
dence in a trial by court-martial. 

* 226. Rules of Procedure; Reports. — Are similar to 
that of courts-martial, except proceedings are usually 
signed by all the members. 

RETIRING BOARDS. 

237. Procedure. — Its duty is to inquire into facts 
as to disability of any officer who appears to be incapable 
of performing his duties; to determine — 

{a) The extent of the disability; 
(6) Whether such disability is or is not incident 
to the service. 
The procedure is the same as that of other military 
tribunals. 

238. Record is signed by the members and the re- 
corder and transmitted to the Secretary of War for the 
action of the President, 



46 Digest of Davis' Military Law of the U. S. 

238. Approval of Finding. — Retired officers are, in 
fact, pensioners. They do not hold public office. Any 
officer '^wholly retired '^ ceases to be an officer of the Army , 

BOARDS OF SURVEY. 

239. Jurisdiction. — A surveying officer is a tribunal 
created by Army Regulations for the purpose of investi- 
gating questions of property responsibility. A board of 
survey is without power to call or swear witnesses, but 
may receive and file evidence in the form of affidavits. 

241. No Power to Condemn. — A surveying officer 
cannot condemn public property; his action is purely 
advisory. 

242. Boards of Survey in Cases of Desertion are 
called — 

(a) To determine whether Government prop- 
erty has been lost, and to fix the exact 
accountability of the soldier; 

(6) To ascertain the cause of desertion. 

243. Boards to Determine the Character Given to 
Discharged Enlisted Men may be convened by a com- 
manding officer to determine whether a soldier's re- 
enlistment should or should not be recommended and the 
kind of discharge to be given him. Notification tO soldier 
should be made at least thirty days prior to discharge. 



and the Manual for Courts-Martial 47 



CHAPTER XV. 



Evidence. 



244. Evidence is a term which includes all mat- 
ters of fact which a court of justice permits to be sub- 
mitted in the trial of a case, with a view to prove or dis- 
prove the existence of a fact in issue. 

245. How Obtained. — Evidence is obtained by ap- 
plication of a system of rules, called '^ rules of evidence. '^ 

245. Witnesses are persons who relate in court, 
under oath, such facts pertaining to a particular case as 
they have become cognizant of through the medium of 
their senses. 

245. Purpose of Rules of Evidence is to determine 
(a) Thecompetency of witnesses; 
(h) The credibility of witnesses. 

WITNESSES. 
245. Duty of Witness to Testify; Appearance. ^ — 

Every person upon whom a subpoena has been duly served 
must appear and testify or render himself liable to pun- 
ishment for contempt. 

245. Appearance of Military Persons. — The attend- 
ance of military persons is secured by the issuance of 
orders from the proper military authority. Failure to 
obey such summons, if not explained, constitutes the 
offense of disobedience of orders. 



48 Digest of Davis' Military Law of the U. S. 

245. Appearance of Civilians. — To obtain the at- 
tendance of a civilian as a witness, a formal subpoena is 
issued by the judge-advocate. If the witness has in his 
possession a document which is material as evidence, a 
writ called a subpcena duces tecum issues, commanding 
him to produce the document described in court on a 
certain day. 

246. Service of Process. — A summons may legally 
be served either by a military or a civil person, but will 
perferably be served by an officer or non-commissioned 
officer of the Army. 

246. Method of Service. — To constitute service, 
the original is shown to the witness, or, if two copies are 
furnished, the duplicate is delivered to him; a certificate 
of service is then indorsed upon the original writ, which 
is returned to the judge-advocate. 

247. Operation of the Writ. — The power to issue 
writs of subpoena is vested by statute — not in the court- 
martial itself, but in the judge-advocate. Such writs 
are operative anywhere within the territorial jurisdiction 
of the United States. 

247. Time of Service. — The service of a subpoena 
upon a witness ought always to be made at least one day 
before the trial. 

THE WRIT OF ATTACHMENT. 

248. Nature and Purpose. — The writ of attachment 
is a compulsory process to compel the attendance of a 
witness; it authorizes the officer charged with its execu- 
tion to arrest the person named and compel his appearance 
in court, using .such force as is necessary. 



and the Manual for Courts-Martial 49 

248. Application in Court-Martial Procedure. — The 

power to issue a writ of attachment is vested exclusively 
in the judge-advocate and cannot be exercised by the 
court. 

248. Limitation of the Power to Issue Writs of At- 
tachment. — The power of the judge-advocate to issue 
writs of attachment is restricted to the State, Territory, 
or District in which the court is sitting. 

249. Service of Process of Attachment. — To author- 
ize a resort to an attachment, there must have been a 
formal summons duly issued and served upon the witness 
and not complied with. The judge-advocate is author- 
ized only to initiate the process of attachment. 

Whenever it becomes necessary to enforce the at- 
tendance of a witness, the judge-advocate will issue a 
warrant of attachment, directing and delivering it for 
execution to an officer designated by the department 
commander. When necessary, the nearest post com- 
mander will furnish a military detail sufficient to execute 
the process. 

The person entrusted with the service of a writ of at- 
tachment should be provided with the following papers: 

(a) The order convening the court; 

(b) A copy of the charges; 

(c) The original subpoena, with affidavits and 

certificates of service; 

(d) An affidavit from the judge-advocate that 

the party has failed to appear, that he is 
a necessary witness, and that no valid 
excuse has been fixed for such failure to 
appear. 



50 Digest of Davis' Military Law of the U. S. 

250. The Rules of Evidence observed in civil courts 
should in general apply in trials by courts-martial. 

COMPETENCY OF WITNESSES; CREDIBILITY. 

251 . Competency of a Witness is his legal capacity 
to testify, and is determined by enactments of Congress 
or by the common law. 

The credibility of a witness is his worthiness of belief, 
and is determined by his character, by the acuteness of 
his powers of observation, by the accuracy and retentive- 
ness of his memory, and by his capacity for lucid expres- 
sion. The court determines questions of competency, 
and if decided adversely, the witness is not permitted 
to testify. 

GROUNDS OF INCOMPETENCY. 

252. Grounds of Incompetency are: 

(a) Infamy; 

(b) Interest in the subject of litigation; 

(c) Want of understanding; 

(d) Want of religious belief. 

(a) Infamy. 

252. Nature of the Disqualification. — The crimes in- 
volving infamy are treason, felony, and the crimen falsi . 

252. Treason consists in adhering to the enemies 
of the United States, in giving them aid or comfort, or 
in levying war against the United States. A person 
convicted of this crime forfeits such rights as attach to 
citizenship. 

252. Felony was the peculiar status occupied by a 
person who had been convicted of certain crimes at com- 
mon law — rather a consquence of crime than a crime it- 



and the Manual for Courts-Martial 51 

self. Any offense which at common law was punisha- 
ble capitally or with forfeiture of land and goods was a 
felony, and a person convicted thereof became infamous. 

253. Practice of the United States Courts. — There is 
no status of felony under the laws of the United States 
unless an offense has been declared felonious or infamous 
by statute, or unless the punishment attached thereto is 
such as to render one who has undergone it infamous. 

Imprisonment in the State prison or penitentiary is 
considered infamous punishment. 

Note: Desertion (except desertion in time of war 
and repeated desertion in time of peace), is not a felony 
and does not rendera witness incompetent before a court- 
martial; but conviction of desertion may impair his cred- 
ibility. 

253. Crimen Falsi at common law was any offense 
involving falsehood and which might injuriously affect 
the administration of justice by the introduction of false- 
hood or fraud; and any person guilty of such an offense 
was regarded as incompetent to testify. Such offenses 
include forgery, perjury, subornation of perjury, suppres- 
sion of testimony by bribery, etc. ; each of which involves 
the repudiation of the sanction of an oath. 

254. Procedure in Case of Incompetency from In- 
famy. — Incompetency from infamy is established by the 
production or proof of the judgment itself. Incompe- 
tency based upon conviction of an infamous offense does 
not operate to produce incompetency beyond the juris- 
diction in which the conviction was had. Such convic- 
tions may be established in evidence with a view to affect 
credibility. 



52 Digest of Davis' Military Law of the U. S. 

(h) Interest. 
254. Reason for the Disqualification. — It was 

a rule of the common law that in a civil action a party 
who was interested in the result of the litigation was per- 
mitted to testify against his interest, but was regarded as 
incompetent to give evidence in his own behalf. It was 
regarded as expedient to remove from the path of a witness 
every temptation to commit perjury. 

255. Testimony Against Interest. — A party is com- 
petent to testify voluntarily against himself at any time 
and in any case. He may do this under oath, or by means 
of confessions, or declarations against interest, made out 
of court in a matter relating to the offense with which he 
is charged. 

255. The Accused in a Criminal Case. — The party 
actually injured by the commission of a criminal offense, 
who is known as the prosecutor, or prosecuting witness, is 
always a competent witness. 

255. Competency of Accused Restored by Statute. 
— If he declines to appear as a witness, his failure to 
appear shall create no presumption against him; if he 
avails himself of the privilege, his status is the same as 
that of any other witness. 

257. Accomplices and Codefendants. — The testi- 
mony of accomplices, codefendants, and the like is, as a 
rule, excluded; but sometimes it is necessary to obtain 
such testimony in a case in which a serious offense would 
otherwise go unpunished. An accomplice or codefendant 
is incompetent: first, because of infamy; second, because 
of interest. The first accrues upon conviction; the second 



and the Manual for Courts-Martial 53 

when an indictment has been obtained or prosecution 
begun. 

257. Husband and Wife; Exceptions. — Either is in- 
competent to testify for or against the other in any ac- 
tion. An exception exists in the case of a crime com- 
mitted by a husband against the person of his wife. 

(c) Want of Understanding. 

258. Want of Understanding becomes a ground of 
incompetency. Under this head fall young children, the 
deaf and dumb, idiots, the insane, and persons under 
the influence of drugs or liquors. But if the cause be tem- 

/ porary, and lucid intervals should occur, the competency 
is restored. 

259. Insanity. — If the facts were observed and tes- 
timony given during lucid intervals^ competency will be 
presumed. 

(d) Want of Religious Belief. 

259. Want of Religious Belief. — The particular form 
of religious belief is not material, so long as it contemplates 
the existence of a Supreme Being to whom the witness 
acknowledges a moral accountability. 

An oath may be defined as an ^'outward pledge given 
by the person taking it that his promise is made under an 
immediate sense of his responsibility to God.'' 

260. Procedure in Cases of Incompetency. — The 
question of competency should, in general, be raised and 
decided before th6 witness is sworn, but may come up at 
any time when his competency becomes apparent. 

Note: The president or any member of a court- 
martial, as also the judge-advocate, may legally give tes- 



54 Digest of Davis' Military Law of the U. S. 

timony before the court, and the fact that the court is 
composed of but five members will not affect the valid- 
ity of the proceedings. 

260. The Voir Dire. — When interest or want of re- 
ligious belief is alleged as a ground of incompetency, the 
fact may be established by the testimony of witnesses, or 
by the admission of the proposed witness, or by his own 
testimony given under the sanction of a peculiar form of 
oath known as the voir dire. If the evidence offered 
aliunde, to prove interest, is rejected as inadmissible, the 
witness may then be examined on the voir dire. 

OPINIONS; EXPERT TESTIMONY. 

261 . Opinion; Experts. — As a rule, testimony in the 
nature of opinion is excluded, but there are two excep- 
tions to this general rule: 

{a) Any intelligent witness may testify as to 
opinions which are themselves conclu- 
sions drawn from numerous facts within 
the daily observation and experience of 
all intelligent persons. 

(6) The opinion of experts in an art, trade, or 
profession in which they have attained 
especial proficiency. 

262. Procedure. — The party who introduces expert 
witnesses must show that they are experts in fact. 

RULES OF EVIDENCE. 

262. Purpose of Rules of Evidence. — They have to 
do with determining the competency of witnesses and 



and the Manual for Courts-Martial 55 

the exclusion of certain testimony upon the ground that 
it is likely to mislead or to confuse the main issue. 

263. Oral and Written Testimony. — Oral testimony 
is that given viva voce in open court; written testimony 
is composed of matter in the nature of documents, either 
originals or copies. 

263. Direct and Indirect; Real Evidence. — Oral 
testimony, as to its nature and character, is classified as : 

(a) Direct or original when the witness testifies 

to facts observed by him thiough his 
senses. 

(b) Indirect when the witness derives his knowl- 

edge from the observation of otheis and 
testifies to their statements — called 
hearsay testimony. 
Real evidence consists in the production in court of 
objects or articles that pertain to the case in hearing. 
Evidence is circumstantial when the existence of a fact is 
inferred from the existence or non-existence of other facts 
established in evidence by the testimony of witnesses . 
The rules of evidence also serve to determine: 

(a) The relevancy of testimony — its relation to 

the issues raised by the pleadings. 
(6) The burden of proof — the obligation of es- 
tablishing the truth of each issue raised 
during the trial. 

(c) The quality of evidence which requires the 

best evidence. 

(d) The amount of evidence necessary to estab- 

lish the facts. 



56 Digest of Davis' Military Law of the U. S. 

(a) Relevancy of Evidence. 
264. Relevancy of Evidence. — Evidence must be 
relevant — that is, must bear directly upon the issue. 

264. Relevancy of Facts. — A fact is said to be rele- 
vant when it is the cause or the effect of another fact. 
Testimony objected to as irrelevant may be admitted 
upon the statement of the person producing it that its 
relevancy will appear aba later stage of the proceedings. 

265. Circumstantial Evidence. — In a case depend- 
ing upon circumstantial evidence, the court, ia order to 
convict, must find the circumstances to be satisfactorily 
proved as facts, and must also find that those facts clearly 
imply the guilt of the accused and cannot reasonably be 
reconciled by any hypotheses of innocence. 

265. Character; Reputation. — Character of a per- 
son cannot be established by testimony of witnesses. 
Reputation, which is the outward manifestation of char- 
acter, is susceptible of observation by neighbors and 
others who may testify to such reputation in a proper 
case. 

Evidence of good character, record, and services of 
the accused is admissible in all military cases. The 
prosecution cannot attack the character of the Recused 
until the latter has introduced evidence to sustain it. 

266. Reputation, How Established. — Persons who 
. know the reputation of the accused in the community in 

which he lives can testify as to the reputation which he 
there enjoys for sobriety, integrity, morality, etc. 

(b) Tta Burden of Proof. 
266. How Determined. — The burden of proof — that 



and the Manual for Courts-Martial 57 

is, the task of establishing the truth of a proposition out- 
lined in the pleadings — rests upon the one who alleges 
a fact. 

267. Burden of Proof in a Criminal Trial rests up- 
on the prosecution of establishing in evidence the facts 
of the offense as set forth in the indictment. In collateral 
issues as to the competency of witnesses, the admissibility 
of testimony, etc., the burden of proof rests upon the 
party making the allegations. 

(c) The Best Evidence. 

267. The Best Attainable Evidence Must Be Sub- 
mitted. — If a witness testify as to facts which he has heard 
or seen, or if the original of a document be produced, such 
testimony is the best attainable, and is said to constitute 
primary evidence. If, on the other hand, the witness 
testifies to facts the knowledge of which he has gained 
from another, or if a copy of a document be submitted, 
such evidence is not the best, and is said to be ^^ sec- 
ondary'^ or '^derivative.'' 

268. Hearsay testimony is that obtained from a 
witness who has not himself observed the facts to which 
he testifies, and is objectionable for several reasons: 

1. Because it is secondary. 

2. The real witness is not testifying in court 

under oath. 

3. The opposite party has no opportunity to 

be confronted with the witnesses against 
him or to exercise the right of cross-exam- 
ination. 
The Principal Exceptions Are : 
268. (1) Confessions may be made by a plea of 



58 Digest of Davis' Military Law of the U. S. 

''guilty/' or by a statement made in open court by or 
in behalf of the accused; if made elsewhere, they may 
be testified to by those who heard them, if made under 
such circumstances as to make it clear that the admis- 
sions of guilt were entirely voluntary. 

Corroboration. — A mere confession, not made in 
open court, or otherwise corroborated, will not justify 
conviction. 

Proof of Facts obtained through an inadmissible con- 
fession is both competent and receivable. 

269. (2) Declarations; Admissions Against Inter- 
est. — Acts, declarations, and conduct of the accused on 
the occasion of the commission of an offense are to be 
considered as indicia of his guilt or innocence. 

Dying Declaration is an ante-mortem statement made 
by the declarant in relation to the injury from which he is 
suffering. The sense of impending death is held to re- 
place the sanction of an oath, but the statement will not 
be received if it appears that the declarant cherishes any 
hope of ultimate restoration to health. 

RES GESTiE. 

270. Res Gestae is a form of testimony which con- 
sists of the admissions, statements, and other utter- 
ances of accused persons or interested parties which are 
testified to by those who heard them. 

271 . Rule as to Admission. — The rule governing the 
admission of such statements is that they are receivable 
when they are strictly contemporaneous with and form 
an essential part of the event to which they relate, and 
not otherwise. 



and the Manual for Courts-Martial 59 

Example: If B stabs C and as he inflicts the wound 
exclaims, '^Take that!'' or words of similar effect, such 
exclamation is an essential ingredient of the offense. 

SUBSTANCE OF THE ISSUES; DEPARTURES. 

271. The Substance of the Issue Only Need Be 
Proven. — In the application of this rule a distinction is 
made between matter of substance, which pertains to an 
issue, and matter of description. The latter must be 
proved as alleged; the former, as to its legal or material 
part only. 

272. Judicial Notice. — There are certain facts of 
which all courts take what is called judicial notice — 
that is, accept them without proof, as they are alleged or 
referred to in pleading or argument during the progress 
of a trial. 

272. The Revised Statutes; Supplements. — The 
law of the United States, which is applied by courts- 
martial in military trials, is contained in the Revised 
Statutes and the authorized Supplements thereto, and in 
the biennial volumes of Statutes at Large. 

273. The Statutes at Large consist of twelve vol- 
umes containing the public and private statutes enacted 
since December 1, 18'^3, together with all tieaties and con- 
ventions with foreign powers. 

PUBLIC DOCUMENTS. 
275. Public Documents. — For evidential purposes, 
a public document may be defined as any written instru- 
ment emanating from or filed or recorded in any office or 
department of the Government. 



60 Digest of Davis' Military Law of the U. S. 

275. Production of, in Evidence; How Secured. — 

When it becomes necessary to produce a public document 
in court, secondary evidence of its contents in the form 
of copies is usually furnished, and authenticated by the 
seal of the office. 

DOCUMENTARY EVIDENCE. 

276. Documents. — A document is a statement of 
fact in a written instrument, or anything upon which 
inscriptions, characters, or signs have been recorded and 
which is susceptible of use as evidence. Written instru- 
ments [are classified, according to their source and au- 
thority, into public and private documents, and, according 
to the formality attending their execution, into special- 
ties y or instruments, under seal, and writings or docu- 
ments not under seal, a term which includes all other 
writings. 

A written instrument is regarded as of the highest 
authoity upon the subject to which it relates; and, as a 
rule, cannot be varied or contradicted by parol testimony. 

276. Primary and Secondary Evidence. — Written 
evidence is derived from documents, and is said to be 
either primary or secondary in character, depending upon 
its originality. The former consists in the production ot 
the document itself; the latter consists of copies of the 
original, or in parol testimony as to its contents, derived 
from witnesses fafniliar therewith. 

The production of written evidence is voluntary, 
when done by a party in his own interest, or compulsory, 
when required by the court. 



and the Manual for Courts-Martial 61 

277. Copies of Public Documents. — The principal 
forms are : ' 

1. Exemplifications — that is, transcripts of rec- 

ords or judgments under the great seal 
of the State or the seal of the court. 
These have the same evidential value as 
would the production of the original itself. 

2. Certified or office copies, made by an officer 

specially authorized by statute to perform 
that duty. 

3. Sworn copies , transcripts of public records 

made under oath. Examined copies are 
those which have been compared with the 
original. 

PRIVATE DOCUMENTS. 

283. How Produced; How Proved. — Private docu- 
ments differ from public documents chiefly as to the kind 
and amount of testimony necessary to establish their 
identity. If a sealed instrument, its execution must be 
proved by the testimony of at least one subscribing wit- 
ness, unless the document is in the hands of the opposite 
party, or be over thirty years old and comes from the 
proper custodian, in which case it is said to prove itself. 

283. Notice to Produce; Proof of Handwriting. — 
The production of a paper, if in the hands of the opposite 
party, is obtained by a formal notice to produce. If the 
paper is in the hands of a third party, not a party in in- 
terest, its production is compelled by a subpcena duces 
tecum. When the paper cannot be produced by the 
above methods, secondary evidence may be submitted as 



62 Digest of Davis' Military L,aw of the U. S. 

to its contents. When written copies are submitted, 
^vitnesses are called to prove handwriting, and they testify 
(a) From having seen the document written; 
(6) From having seen writings personally ad- 
mitted by the writer to be genuine; and 
(c) By a comparison of writings. 
Note: A descriptive list is but secondary evidence, 
and^not admissible to prove the facts recited therein. 

284. Production of Telegrams. — Beyond the power 
of a court-martial to compel a telegraph operator, against 
his will, to surrender a dispatch, or copy, to be used as 
evidence. 

ALTERATIONS AND ERASURES. 

284. Nature and Effect. — Interlineations consist of 
words inserted between the lines; erasures are effected by 
striking out words. The effect of such alterations, if 
material and unexplained, is to invalidate the instrument. 

EXAMINATION OF WITNESSES. 

285. Cross - Examination. — The right to cross 
examine is, in general, limited to matters stated by a 
witness in his direct examination. If a party wishes to 
examine a witness of the opposite side with regard to new 
matter not introduced by the opposite party, he must make 
the witness his own by introducing him at a subsequent 
stage of the trial. 

The purpose of cross-examination is to test the cred- 
ibility of the witness. 

288. Leading Questions. — In order to test the credi- 
bility of the witness, leading questions may be put in 



and the Manual for Courts-Martial 63 

cross-examination, together with questions not otherwise 
relevant, the purpose of which is to test his powers of ob- 
servation, the accuracy of his memory, and his correctness 
of statement. 

PRIVILEGED QUESTIONS. 

287. Nature of Privilege. — Witnesses are permitted 
to decline to answer certain questions, called privileged 
questions. The principal cases of privilege are: 

(a) State Secrets. — This privilege has its origin 

in the belief that the public interests 
would suffer by a disclosure of certain 
facts relating to the administration of 
State affairs. 

(b) Attorney and Client. — The disclosures made 

by a client to his counsel are privileged 
during the entire period within which 
the relation of attorney and client exists. 

(c) Husband and Wife. — The law forbids either 

to testify as to any confidential commu- 
nications made during the continuance 
of the marriage relation. 

(d) Criminating Questions; By Whom De- 

termined. — The witness is privileged to 
decline to answer a question which 
would criminate him or expose him to a 
penalty or forfeiture, the court determ- 
ining whether or not the question shall 
be answered; nor can the witness be 
compelled to produce documents which 
would tend to criminate him, or be re- 



64 Digest of Davis' Military Law of the U. S. 

quired to make ^^profert of the person'' 
— that is, to expose any part of his body 
usually covered by his clothing. 
(e) Questions Tending to Disgrace Witness. — 
A witness is privileged to decline to an- 
swer a question which tends to disgrace 
him, unless the answer would bear di- 
rectly upon the issue. 

CREDIBILITY OF WITNESSES. 

290. Credibility in General. — The credibility of a 
witness is his worthiness of belief, and is determined by 
the court. 

Where one witness testifies positively and another 
negatively, both being credible, greater weight is to be 
given to the former. 

291. Conflicting Testimony. — In case of conflict, 
the greater weight should be given to the testimony of 
those witnesses whose position gave them the best oppor- 
tunity for observation. 

291. Impeaching Credit. — The credibility of a wit- 
ness may be attacked in cross-examination; so, too, his 
reputation for veracity may be impeached. 

291. Reputation and Character .-^Testimony im- 
peaching credibility is usually addressed to the person's 
reputation for veracity. When the reputation of a wit- 
ness in this regard has been established in evidence, it is 
permitted in some Qases to ask the witness whether he • 
would believe such a person on his oath. 

292. Inconsistent Statements. — Witnesses may be 
shown, by their own testimony or that of others, to have 



and the Manual for Courts-Martial 65 

made statements out of court not consistent with, and 
in some cases opposed to, those made in their sworn 
testimony. 

REFRESHING MEMORY. 

292. When Permissible. — A witness while under- 
going examination may refresh his memory from notes 
made by himself at the time of the transaction to which 
he testifies, if he can swear that they were made or read 
by him at the time when the events occurred. 

ADMISSION OF FACTS WITHOUT PROOF. 

292. Admissions. — The existence of a fact may be 
admitted by either party, or by an agreement between 
both parties. 

NUMBER OF WITNESSES. 

292. When Important. — As a general rule, the testi- 
mony of a single competent and credible witness is suffi- 
cient to establish a fact in evidence, unless otherwise pro- 
vided by the Constitution or a statutory provision. In 
cases of perjury the testimony of two witnesses is nec- 
essary to convict. 

293. Cumulative Evidence is further or additional 
proof as to a point or fact which has already been estab- 
lished by the testimony of competent and credible wit- 
nesses, and, if objected to, will, in general, be rejected. 

DEPOSITIONS. 

294. Depositions in Evidence. — A deposition is a 
written declaration under oath, made upon notice to the 



66 Digest of Davis' Military Law of the U. S. 

adverse party for the purpose of enabling him to attend 
and cross-examine, or make use of written interrogatories 
for that purpose. 

294. Distinguished from Affidavits. — Affidavits are 
voluntary oaths attesting correctness of certain facts 
contained in a written instrument — ex parte in charac- 
ter — not admissible in the practice of courts-martial. 

Depositions are instruments of evidence, and con- 
stitute means by which guilt or innocence may be 
determined. 

295. Depositions in Court - Martial Procedure. — 
Depositions cannot be received in capital cases, and in 
other cases only when the witness resides without the 
State, Territory, or District in which the court may be 
ordered to sit. 

296. Procedure. — Interrogatories are drawn up by 
the party who desires the testimony of the witness, and 
cross-interrogatories are framed by the opposite party. 
After both lists have been accepted by the court, the 
judge-advocate prepares duplicate subpoenas requiring 
the witness to appear in person at a time and place to be 
fixed by the officer who is to take the deposition. The 
judge-advocate will then send the interrogatories and 
subpoenas to the convening authority, with a request that 
the deposition be secured. 

297. Evidential Value. — Objections to the compe- 
tency of a deponent should be raised prior to the reading 
of his deposition. Sht)uld the deponent be found to be 
incompetent, his deposition is rejected by the court. One 
party cannot withhold a deposition against the consent 
of the other. 



and the Manual for Courts-Martial 67 

Note : It has been held that a deposition, duly taken, 
cannot be rejected by the court merely upon the ground 
that ^'in all criminal prosecutions the accused shall enjoy 
the right to be confronted with the witnesses against 
him'^; this constitutional provision having no application 
to courts-martial. 

PRESUMPTIONS. 

298. Nature and Character. — Presumptions are ei- 
ther legal assumptions, or logical inferences from the exist- 
ence of certain facts, as to the existence or non-existence 
of facts in issue. 

If logical inferences, they are presumptions of fact; 
if legal assumptions, they are presumptions of law. 

298. Presumptions of Fact are based upon facts 
which must be derived from the evidence submitted and 
irreconcilable with any reasonable theory of innocence. 

298. Presumptions of Law are assumptions of the 
truth of certain facts without proof of their existence; 
they assume a certain fact or set of facts to exist as a 
probable consequence of the existence of other facts. 

Presumptions of law are classified into conclusive 
or absolute presumptions and disputable presumptions. 
(a) A conclusive, absolute , or indisputable pre- 
sumption is one which assumes a fact or 
condition of fact to exist, and forbids al 1 
proof to the contrary. 
(6) A disputable presumption consists in the 
assumption of the truth of a fact until 
the contrary is proven. 



68 Digest of Davis* Military Law of the U. S. 



CHAPTER XVI. 



Martial Law. 

300. Military Government; Military Commissions. 

— Martial law is a term applied to the temporary gov- 
ernment by military authority of a place or district in 
which, by reason of the existence of civil disorder or a 
state of war, the civil government is unable to exercise its 
functions. 

Note: Not synonymous with military law, which 

is a department of the municipal law applicable to a 

small portion of the people engaged in a special service. 

Martial law may be regarded from several points 

of view: 

(a) 300. In Its Application to the Occupied 
Territory of an Enemy in War it is 
f called ^Hhe law of hostile occupation.'^ 

When Applicable. — It applies to territory 
over which the Constitution and laws of 
the United States have no operation and 
in which the guarantees which are con- 
tained in that instrument are entirely 
inoperative. 
The municipal laws of a conquered country 
continue in force during the military oc- 
cupation by the conqueror, except in so 
. far as the same may necessarily be sus- 
pended. 



and the Manual for Courts-Martial 69 

(6) 301 . Application to Territory of the United 
States in Insurrection or Rebellion. — 

When a state of public war exists, the 
participants in such insurrection become 
pubUc enemies, and the territory consti- 
tuting the theater of operations becomes 
the territory of the enemy. 
(c) 303. Application of Martial Law to Do- 
mestic Territory in Case of Civil Disor- 
der, or of Resistance to the Execution of 
the Laws, where the civil authorities, 
by reason of civil disturbances, are una- 
ble to preserve the peace or to afford 
adequate protection to life and property. 

304. Declaration or Recognition; Source of Au- 
thority. — Martial law is not created by law; it exists as a 
matter of fact, but its existence is recognized solely as a 
matter of necessity. It cannot be created or terminated 
by any authority conferred by the Constitution. 

305. When in Existence; By Whom Recognized. — 
Martial law comes into being as a question of imperative 
necessity. Its existence can only be justified by the 
emergency of an existing situation, when life and prop- 
erty can only be protected by the use of military force. 

305. How Declared or Recognized to Exist. — In the 
event of a sufficient emergency, martial law may be de- 
clared to exist by proclamation issued by the President 
or by the proper military commander. . It should describe 
the emergency and define the limits within which it exists, 
and should prescribe such rules of conduct for the guidance 



70 Digest of Davis' Military Law of the U. S. 

of individuals as are warranted by the necessities of 
the case. 

306. Extent of Its Application. — As the emergency 
may be in the nature of an insurrection, or in resistance to 
the execution of a single law, the employment of force 
must be in direct proportion to the emergency. 

306. By Whom Exercised. — Martial law is executed 
by the general commanding the military forces, under 
direction of the President, in conformity with the usages 
of war, as determined by the character of an existing 
emergency. 

307. Rules for Its Exercise. — The civil laws are 
not annulled, but temporarily suspended, and should be 
conformed to in spirit. No measures involving restraints 
on personal liberty can be resorted to unless warranted by 
an existing emergency. Every step taken must be with a 
view to the restoration of order and the replacement of 
the civil authority. 

MILITARY COMMISSIONS. 

307. Authority and Function. — Military commis- 
sions are criminal war-courts, resorted to for the reason 
that the jurisdiction of the courts-martial, created as they 
are by statute, is restricted by law, and cannot be ex- 
tended to include certain classes of offenses which in war 
would otherwise go unpunished. 

309. Constitution and Composition. — Same rules 
that govern the constitution, composition, and procedure 
of general courts-martial apply in general in these par- 
ticulars to military commanders. 



and the Manual for Courts-Martial 71 

309. Composition.— Usage has fixed the minimum 
of members at three. 

309. Jurisdiction of military commissions is exer- 
cised over two classes of ofTenses: 

(a) Violations of the laws of war. 
(6) Civil crimes: when such offenses are com- 
mitted by civilians or military persons, 
either 

(1) In the enemy's country, or 

(2) In a locality in which martial law 

has been established by a compe- 
tent authority. 
313. Sentences should award criminal punishment. 
A judgment of debt or damages, on conviction of a crim- 
inal offense, would be irregular, and would be properly 
disapproved. 



72 Digest of Davis' Military Law of the U. S. 



CHAPTER XVII. 



Habeas Corpus. 

314. Purpose and Effect. — The purpose of the writ 
of habeas corpus is to furnish a summary remedy for all 
cases in which the person of a citizen is subjected to un- 
lawful restraint or imprisonment. Both Federal and 
State courts have power to issue the writ. It is issued by 
State courts in a much greater number of cases. 

314. Jurisdiction of the Federal Courts. — The law 
confers power upon the Supreme Court and the several 
Circuit and District Courts of the United States, also 
the several justices and judges of said courts, to issue 
writs of habeas corpus for the purpose of inquiring into 
the cause of restraints upon liberty. 

315. Character of the Restraint. — The restraint 
may consist in the actual arrest or confinement of a mil- 
itary person, or in the confinement of a citizen by the 
military authority. The legality of enlistment of a mi- 
nor without proper consent may be made the subject of 
inquiry. 

316. Procedure. — The parties to the writ are the 
petitioner, in whose behalf the writ was issued, and the 
respondent, the officer to whom the writ is addressed. 
The usual procedure is for the court, on the application of 
the prisoner for a writ of habeas corpus, to issue the writ 
and, on its return, to hear and dispose of the case. 



and the Manual for Courts-Marttal 73 

317. Return. — Where the writ issues from a Fed- 
eral court, it is the duty of the officer holding the prisoner 
in custody to bring him into the presence of the court, and 
to make a return in writing, setting forth reasons for the 
restraint, and submitting to the court the whole question 
of authority and discharge. 

318. Conflicts of Jurisdiction Between the State and 
Federal Courts. — The jurisdiction of State and Federal 
courts being limited by statute, neither court may issue a 
writ of habeas corpus properly falling within the juris- 
diction of the other. 

A State court has no jurisdiction by habeas corpus 
to release a prisoner held by order of a Federal court; it 
has no jurisdiction by such a writ over the detention of an 
enlisted soldier of the United States. 

320. Suspension of the Privilege of the Writ of 
Habeas Corpus. — It shall not be suspended unless when, 
in cases of rebellion or invasion, the public safety may 
require it. 



74 Digest of Davis' Military Law of the U. S. 



CHAPTER XIX. 



The Articles of War. 

367. Musters (Article 56). — A muster is the peri- 
odical assembling of organized commands for review and 
personal inspection, with a view to the verification of 
their numbers and equipment, and the presence and 
identity of their individual members. 

378. False Muster may be said to consist in any 
acquiescence on the part of the mustering officer in false 
or fraudulent presentation or enumeration of any person 
or article of property presented for muster on the official 
muster-rolls. 

379. Orders; Nature and Character (Article 64). — 
Orders are authoritative directions in respect to the mili- 
tary service issuing from a competent military superior. 

380. Essential Elements. — The subordinate is not 
permitted to question either the propriety or legality of 
an order. 

A lawful order is a command, issued by a military 
superior to a person under his command, requiring an act 
to be done which is permitted or justified by law. 

Except where the illegality of an order is glaringly 
apparent on the face of it, a subordinate is compelled to a 
strict obedience. 

382. When Operative. — An order becomes operat- 
ive where military notice of its existence and contents 
has been communicated to the persons concerned. 



and the Manual for Courts-Martial 75 

The notice of the order, to affect the officer, should 
be a personal notice, actual or constructive, and it should 
be an official notice. 

382. Disobedience of Orders. — The offense of diso- 
bedience of orders consists in a refusal or neglect to comply 
with a specific order to do or not to do a particular thing. 
A mere failure to perform a routine duty is properly 
chargeable under Article 96, as also a breach of an Army 
regulation. 

A non-compliance by a soldier with an order eman- 
ating from a non-commissioned officer is charged under 
the 96th Article. 

383. Character of Disobedience. — Disobedience 
may be either negative or positive. In the first, the orders 
might be of no immediate urgency or of no great import- 
ance, or the disobedience might arise out of simple negli- 
gence, as the non-observance or neglect of orders of long 
standing. In none of these cases is there implied any 
bold or wanton defiance of authority, or any more serious 
offense than is provided against in the 96th Article. 

In the second, the absolute resistance of or refusal 
of obedience to a present and urgent command, either 
oral or written, by the non-compliance with which some 
immediate and necessary act might be impeded or de- 
feated, is properly chargeable under the 64th Article. 

384. Specific Character of the Mandate. — The diso- 
bedience of orders contemplated by the 64th Article is a 
positive and willful disobedience of an order specially or 
directly given to the accused, and not a mere neglect or 
omission of general duty. 

385. Channels of Communication. — An official com- 



76 Digest of Davis' Military Law of the U. S. 

munication made to the accused by any commissioned 
officer, stating that the superior directs him to do so and 
so, is an order. The agent communicating the orders 
should state that he does so by the order, or by the direc- 
tion or request, of the superior. 

387. Striking a Superior Officer, Etc. — The offense 
contemplated in the article consists in the infliction of any 
bodily injury, however slight, upon the person of a mili- 
tary superior, such superior being a commissioned officer; 
or in an attempt to inflict such injury by drawing or lift- 
ing up any weapon, attended by such circumstances as 
denote an intention to inflict injury. 

388. Being in the Execution of His Office. — It is an 
essential element of the offense that the officer should be 
in the execution of his office. 

389. Drawing and Lifting Up Any Weapons ; Offer- 
ing Violence. — The words ^^ draws or lifts up any weapon, 
or offers any violence against him," import an "assault,^' 
which may be defined as an unlawful attempt to do injury 
to the person of another, coupled with the capacity to 
inflict the injury at the instant when the violence is 
offered. 

389. Article 66. — Mutiny may be defined to be an 
unlawful opposing or resisting of lawful military au- 
thority, with intent to subvert the same or to nullify it 
for the time. The offense here defined will be a con- 
certed proceeding; the concert itself going far to establish 
the intent necessary to the legal crime. 

396. Challenges (Article 91).— To estabfish that a 
challenge was sent, there must appear to have been com- 
municated by one party to the other a deliberate invita- 



and the Manual for Courts-Martial 77 

tion in terms or in substance to engage in a personal 
combat with deadly weapons, with a view to obtaining 
satisfaction for wounded honor. 

402. Article 61. — The offense of absence without 
leave is chargeable under this article in the case of an en- 
listed man, and under the 96th Article in the case of 
an officer. 

If, upon returning from an unauthorized absence, an 
officer or soldier is placed upon or allowed to perform full 
duty, such action operates as a waiver of the charge of 
absence without leave. 

408. On Duty; Off Duty.— The words ^^on duty,'' 
as used in the 58th Article and as applied to the com- 
manding officer of a post, or of an organization, or of a 
detachment in the field, the senior officer present, in the 
actual exercise of command, is constantly on duty; the 
term being here used in contradistinction to ^^on leave.'' 

408. Nature of Intoxicant. — It is immaterial wheth- 
er the drunkenness be voluntarily induced by spirituous 
liquor or by opium or other intoxicating drug. 

The drunkenness need not be such as totally to in- 
capacitate the party for duty; it is sufficient if it be such 
as materially to impair the full and free use of his mental 
or physical abilities. 

420. Definition (Article 58). — Desertion is an unau- 
thorized absenting of himself from the military service by 
an officer or soldier, with the intention of not returning. 
The essential elements of the offense are the fact of the 
unauthorized voluntary withdrawal and the intent per- 
manently to abandon the service. 

427. Statutory Consequences of Desertion. — Cer- 



78 Digest of Davis' Military Law of the U. S» 

tain statutory consequences follow upon conviction of the 
offense of desertion. These are: 

(a) The obligation to make good the time lost ; 

(6) Forfeiture of the rights of citizenship; 

(c) Incapacity to hold office under the United 

States ; 

(d) Forfeiture of retained pay and deposits. 
439. Safeguards (Article 78). — A safeguard is a writ- 
ten instrument issued by a general commanding an army 
in the field, for the purpose of affording protection to the 
person or property of a non-combatant within the theater 
of active military operation. 

439. Forcing a Safeguard. — The offense is com- 
mitted by a military person, who, with a knowledge of its 
existence, does any act of violence or spoliation in or upon 
the premises protected, or willfully disregards the protec- 
tion offered by the instrument. 

440. Application of the Article (Article 93). — In im- 
posing punishment, the court should be governed by the 
local law, although the offense was committed in a State 
whose ordinary relations to the general government had 
been suspended by a state of war. 

441. Arson is the malicious and willful burning of 
the house of another. 

It is sufficient if the wood of the house be charred in 
a single place so as to destroy its fiber. 

442. Assault and Battery. — The offense of assault 
and battery is composed of the two elements named, which, 
taken together, constitute the complete offense. An as- 
sault is an attempt with force and violence to do corporal 
injury to another, as by striking at him with a weapon. 



and the Manual for Courts-Martial 79 

Even striking at a person, though no blow be inflicted, 
or raising the arm to srike, or holding up one's fist at 
him, if done in anger or in a menacing manner, are con- 
sidered by law as assaults. 

Battery is the unlawful beating or wounding of an- 
other. A battery, from the nature of the offense, includes 
an assault, and is therefore charged as ^^ assault and bat- 
tery ''; but there may be an assault without battery, 
which is regarded by the law as a criminal offense. 

442. Assault and Battery with Intent to Kill. — The 
proof under a charge of ^ ^assault with intent to kilP' must 
be such as to show that, if death had been caused by the 
assault, the assailant would have been guilty of murder. 

443. Burglary is the breaking and entering of a 
dwelling-house by night with intent to commit a felony 
therein, whether such felonious intent be executed or not. 
The breaking is either actual, as where the person makes 
a hole in a door or opens a window, or in law (constructive), 
as where he obtains an entrance by threats, or fraud, or 
by collusion with some one in the house. 

444. The Building. — Every dwelling-house is a habi- 
tation in which burglary may be committed, and also all 
out-houses attached to the dwelling and intended for the 
comfort and convenience of the family. 

445. The Intent will, in general, be proved from the 
circumstances attending the commission of the offense. 

445. Murder; Degrees. — Murder is the willful kill- 
ing of a human being in the peace of the country,r/with 
malice aforethought, either express or implied. Premedi- 
tation or malice aforethought is an essential ingredient of 
the offense. 



80 Digest of Davis' Military Law of the U. S. 

446. Manslaughter is the unlawful killing of a hu- 
man being without malice, express or implied. It is vol- 
untary when committed with a design to kill under the 
influence of sudden or violent passion, caused by great 
provocation. It is involuntary when committed by ac- 
cident or without any intention to take life. 

This crime, when committed by a military person, 
may be taken cognizance of by a court-martial, in time of 
peace, under Article 96, as ^^ conduct to the prejudice of 
good order anid mihtary discipline.^' 

447. Homicide is a term embracing every mode by 
which the life of one man is taken by another. 

Criminal or felonious homicide consists in the un- 
lawful taking by one human being of the life of another 
in such a manner that he dies within the space of a year 
and a day from the time of the giving of the mortal 
wound. 

447. Justifiable Homicide consists in the taking of 
human life in obedience to the law under such circum- 
stances as to warrant the inference that the act was done 
without malice or criminal intention. 

Homicide in obedience to law includes the execution 
of criminals and the killing of enemies in war. 

448. Excusable Homicide is that which results from 
accident or misadventure in the doing of a lawful act or 
in a proper and reasonable exercise of the right of self- 
defense. 

448. Self - Defense. — A man may repel force by 
force in the defense of his person, his family, or property 
against any one who manifestly endeavors by violence or 



and the Manual for Courts-Martial 81 

surprise to commit a felony — as murder, robbery, or 
the like. 

449. Larceny is the wrongful or fraudulent taking 
and carrying away of things personal, with the intent to 
deprive the owner of the same. There must not only be 
a taking, but a carrying away. 

450. Robbery is the felonious taking of goods from 
the person of another, or in his presence, by violence 
or by putting him in fear, and against his will. 

450. Embezzlement is a species of larceny in the 
nature of a criminal breach of trust, and consists in the 
fraudulent conversion of property to his own use by an 
agent, clerk, servant, or in general by any person acting in 
a fiduciary capacity. 

453. Mayhem. — At the common law the offense 
consisted in the act of unlawfully and violently depriving 
another of the use of such of his members as might render 
him less able, in fighting, either to defend himself or an- 
noy his adversary. In most of the States the scope of 
this offense has been extended so as to include all mali- 
cious injuries to the person. 

453. Forgery is the false or fraudulent making or 
alteration of an instrument, with intent to defraud or to 
prejudice the right of another. 

454. Perjury may be defined as ''false swearing," 
and includes the breach of the solemn sanction of an oath 
or the making of a false oath. 

When a witness to whom a lawful oath has been ad- 
ministered in a judicial proceeding swears falsely in a 
matter material to the issue, he is said to commit perjury. 
The fact sworn to should be material; for if such fact have 



82 Digest of Davis' Military Law of the U. S. 

no bearing upon the issue, the administration of justice 
has not been affected injuriously and there has not been 
perjury. 

Subornation of perjury is the offense of procuring 
another to take such a false oath as constitutes perjury 
in the principal. 

455. Perjury in Military Practice. — False swearing 
by a military person before a court-martial is "conduct 
to the prejudice of good order and military discipline, ' ' 
and is cognizable and punishable under Article 96. And 
a charge of "perjury" in connection with a specification 
setting forth a false swearing upon a court-martial will 
constitute a sufficient allegation of an offense under this 
article. 

False Swearing before a court-martial not being per- 
jury at common law, the rules as to the character and 
amount of evidence necessary to sustain an indictment 
for perjury need not govern the proof of the military 
offense; such offense will ordinarily be established by the 
written record. 

473. Neglects and Disorders (Article 96).— A " neg- 
lect'' is an omission or forbearance to do a thing that can 
be done or that is required to be done. Law, regulations, 
orders, and, where these are silent, the custom of service 
prescribe the several military duties and obligations the 
neglect of which is chargeable under this article. The 
term "disorder'' is more comprehensive than when used 
in reference to civil affairs, and includes not only disorders 
in the sense of quarrels and the like, but all interruptions 
of the good order which should prevail in camp or garrison . 

551. Remission (Article 50) is a partial exercise of 



and the Manual for Courts-Martial 83 

the pardoning power, relieving the person from a punish- 
ment or the unexecuted portion of a punishment, but not 
pardoning the offense as such, or removing the disabilities 
or penal consequences attaching thereto. 

551 . Mitigation is a reduction by the reviewing au- 
thority of a punishment in quantity or quality, without 
changing its species. Imprisonment, fine, forfeiture, and 
suspension are capable of mitigation. A punishment in 
itself illegal is not capable of mitigation. 

552. Commutation is a substitution of some other 
punishment for that named in the sentence, where, as in 
the case of a sentence of death, dismissal, or dishonorable 
discharge, there is no lesser form or degree of the same 
punishment to which a sentence can be reduced by way 
of mitigation, mercy, or clemency. 

553. Procedure Under Article 111 . — AppUcations for 
copies of the proceedings and sentence of a court-mar- 
tial may be, and in practice commonly are, addressed 
to the Judge-Advocate General, who thereupon furnishes 
the copy certified by him as correct, provided the applica- 
tion is made by the accused or in his behalf. 

A person applying for the copy in behalf of the ac- 
cused should exhibit some satisfactory evidence that he 
duly represents the accused. 

A copy of the proceedings and sentence cannot prop- 
erly be furnished until the same have been finally acted 
upon and such action has been promulgated in the usual 
manner. 



and the Manual for Courts-Martial 85 



Questions and Answers on Manual for 
Courts-Martial 



(Numbers Refer to Pages.) 

Q. 5. What are the four kinds of Mihtary Jurisdiction: De- 
fine each. 

A. (a) Military Law is the legal system that regulates the 

government of the military establishment. It is a 

branch of the municipal law. 

(b) The Law of Hostile Occupation is the miUtary power 

exercised by a belligerent, by virtue of his occupation 
of an enemy's territory, over such territory and its 
inhabitants. 

(c) Martial Law at Home is the military power exercised 

in time of war, insurrection, or rebellion, in parts of 
the country retaining their allegiance, and over per- 
sons and things not ordinarily subjected to it. 

(d) Martial Law Applied to the Army is the military power 

extending in time of war, insurrection, or rebelhon 
over persons in the military service, as to obligations 
arising out of such emergency and not falling within 
the domain of military law nor otherwise regulated 
by law. '^ 

Q. 6. What is the source of Military Jurisdiction? 
A. The Constitution. 

Q. 6. What are the written sources of Military Law? 
A. The Articles of War; other statutory enactments relating 
to the mihtary service; Army Regulations; general and special 
orders and decisions promulgated by the War Department and by 
def)artment, post, and other commanders. 

Q. 6. What is the unwritten source of Military Law? 



86 Digest of Davis' Military Law of the U. S. 

A. The ''custom of war," consisting of the customs of the 
service both in peace and in war. 

Q. 6. Name the three kinds of MiUtary Tribunals. 

A. (a) Courts-Martial, for the trial of offenders against the 
military law; 
(6) Courts of Inquiry, for examining transactions agg^inst 

officers or soldiers; 
(c) Military Commissions, for the trial of offenders against 
the laws of war and under martial law, founded in 
necessity. 

Q 6. When only mil non-commissioned officers be confined in 
the guard-house? 

A. In aggravated cases or where escape is feared. 

Q. 8. What means of restraint is authorized in the case of 
soldiers against whom charges may be preferred for trial by sum- 
mary court? 

A. They will not be confined in the guard-house, but will be 
placed in arrest in quarters. 

Q. 9. What is the duty of an officer authorizing the arrest oi 
confinement of a soldier? 

A. He will, as soon as practicable, report the fact to the sol- 
dier's company commander. 

Q. 11. What class of officers of the regular Army are ineligible 
for detail for the trial of offenders belonging to the regular Army? 

A. Those on the retired list, contract surgeons, veterinarians, 
and chaplains — in practice. 

Q. 11. Are officers of the regular Army eligible to sit on courts 
for the trial of offenders belonging to other forces? 

A. No; but officers of the Marine Corps, when detached for 
duty with the Army, are so eligible. 

Q. 11. When are volunteer and militia officers competent to 
act as members of courts for the trial of regular officers and soldiers? 

A. When called into the service of the United States. 

Q. 11. What is the rule with respect to the membership of 
courts-martial for the trial of the militia? 

A. The majority of membership must be composed of militia 
officers. 

Q. 12. Name the Inferior Courts-martial. 

A. Special and Summary Courts-martial. 



and the Manual for Courts-Martial 87 

Q. 12. How many members may a general court-martial 
consist of? 

A. Not less than five or more than thirteen and a judge- 
advocate. 

Q. 12. What is the procedure when a general court is reduced 
below five members? 

A. The judge-advocate is directed to report that fact to the 
convening authority, and the court adjourns to await further orders. 
In such a case new members may be added; but if any testimony 
has been taken, the court should preferably be dissolved. 
Q. 12. Who may appoint general courts-martial? 
A. (a) The President as Commander-in-chief of the Army. 
(6) Any general officer commanding an army, a territorial 
division, cr a department, or colonel commanding a 
separate department; but when any such com- 
mander is the accuser or prosecutor of any officer 
under his command, the court must be appointed by 
the President. 
(c) The Superintendent of the United States Military 
Academy. 
Q. 13. Have courts-martial jurisdiction to try acts which, 
besides constituting military offenses, are also civil crimes? 

A. Yes; but in this case the military ordinarily gives preced- 
ence to the civil court. In general, however, that jurisdiction which 
has first fully attached is properly allowed to have precedence. 

Q. 14. What is the jurisdiction of courts-martial as regards 
per sens? 

A. Courts-martial have jurisdiction at all times and in all 
places over officers and soldiers of any troops mustered and in the 
pay. of the United States, including retired officers and soldiers. 
Military offenses are not territorial. 

Q. 14. What are the exceptions to the rule that miUtary juris- 
diction ends when a soldier is discharged? 

A. Discharged officers and soldiers guilty of fraud against 
the United States under the 94th Article of War; discharged officers 
and soldiers granted trial after summary dismissal, under Section 
1230, R. S.; and general prisoners. 

Q. 15. What is the jurisdiction of courts-martial as regards 
of 



88 Digest of Davis' Military Law of the U. S. 

A. It embraces the offenses defined in the Articles of War, the 
offense of mihtary persons trading with the enemy, and that of 
fraudulently enhsting in the service ot the United States. 

Q. 15. With reference to other courts-martial, over what 
classes of persons have general courts-martial exclusive jurisdiction? 

A. Officers, cadets, and candidates for promotion. 

Q. 15. Over what persons concurrent jurisdiction with the 
inferior courts? 

A. EnUsted men, candidates for promotion, and general 
prisoners. 

Q. 15. May a non-commissioned officer be brought to trial 
before a summary court-martial if he objects to such trial? 

A. He will be tried by general or special court-martial unless 
trial is otherwise directed by the officer competent to appoint 
general courts-martial. 

Q. 16. As regards offenses, what is the nature of general court- 
martial jurisdiction? 

A. They have exclusive jurisdiction over all offenses pun- 
ishable capitally; and over those set forth in the 92nd and 93rd Article, 
when committed in time of war. Over other offenses they have 
concurrent jurisdiction with the inferior courts. 

Q. 16. What are the two parts of a military charge? 

A. (a) The technical charge, which designates the alleged of- 
fense in general terms; 
(6) The specification, which sets forth the facts constitut- 
ing the same. 

Q, 16. What is the requisite form for each? 

A. (a) The charge must be laid under the proper Article of 
War or other statute; 
(6) The specification must set forth facts sufficient to con- 
stitute the particular offense. 

Q. 19. When will commanding officers cause the accused to 
sign a statement that he consents to trial by a summary court? 

A. Before referring the charges to the summary court for trial, 
where the maximum kind oi punishment that may be awarded is 
greater than one month's forfeiture and confinement. 

Q. 19. What papers should be forwarded with general court- 
martial charges? 

A, Statement of service^ statement of evidence expected from 



and the Manual for Courts-Martial 8& 

each witness, and evidence of previous convictions. In case of a 
deserter, the surgeon's report required by Par. 125, A. R., will also 
be forwarded. 

Q. 20. What does the authority appointing a court-martial 
designate? 

A. The place for holding the court, the hour of meeting, the 
members of the court, and the judge-advocate. 

Q. 21. How do members of a court take their seats? 

A. The president sits at the head of the table, the other mem- 
bers at his right and left alternately — according to rank; the judge- 
advocate sits at the foot of the table. 

Q. 21. In court-martial procedure, what is the custom as 
regards standing? 

A. During the reading of the order convening the court and 
the arraignment, the judge-advocate and the accused should stand; 
while the court and the judge-advocate are being sworn, all stand; 
when a reporter, an interpreter, or a witness is being sworn, he and 
the judge-advocate should stand; and when the judge-advocate, the 
accused, or his counsel addresses the court, he should rise. 

Q. 22. When is the organization of the court complete? 

A. On the swearing-in of the members and the judge-advocate. 

Q. 22. What effect has a tie vote on the findings? 

A. '^Not guilty." A tie vote on a proposed sentence or on 
any objection or motion is a vote in the negative. 

Q. What are the duties of the judge-advocate with respect 
to the accused? 

A. He should acquaint the prisoner with accusations against 
him, inform him of his nght to have counsel and to testify in his 
own behalf, and lurnish him with a copy of the charges, if desired. 
When the accused determines to plead ''guilty," the judge-advocate 
should inform him of his right to introduce evidence in explanation 
of the offense, and should assist him in securing it. When the ac- 
cused is without counsel, the judge-advocate should take care that 
he does not suffer from any ignorance of his legal rights. 

Q. 26. What compensation is allowed a stenographic reporter? 

A. When the court -sits less than three hours the first day, 
$3.00 a day or $1.00 an hour for a longer period; fifteen (lo) cents 
for each 100 words of the original record; no allowance is made for 
the first carbon copy; ten (10) cents for each 100 words for copying 



90 Digest of Davis' Military Law of the U.S. 

papers material to the inquiry, and two (2) cents for each 100 words 
for each carbon copy of the same, when ordered; two (2) cents for 
each 100 words for the second and each additional carbon copy of 
the record, when authorized. One copy of the record of a special 
court-martial will be required, for which the reporter will receive 
tnirteen (13) cents for each 100 words. 

Q. 27. Wnat is done with the carbon copy? 

A. It is furnished to the accused, if he desires it, after being 
corrected and certified as a true copy, except as to findings, sen- 
tence, and exhibits not copied. When this is done, a certificate to 
that effect will accompany tne record; otherwise, it will be trans- 
mitted direct to the Judge- Advocate General of the Army. 

Q. 28. Who else besides the accused may challenge members 
of a court-martial? 

A. The judge-advocate may challenge for cause, under custom 
of the service. 

Q. 29. Is the judge-advocate challengeable? 

A. No. 

Q. 31. To whom should application for a postponement be 
madeV 

A. To the convening authority. 

Q. 23. What is the procedure in the case of a prisoner who, 
from obstinacy or deliberate design, stands mute or answers foreign 
to the purpose? 

A. The court will proceed to trial and judgment as if the 
prisoner nad pleaded ''Not guilty." 

Q. 44. What compensation is allowed a civilian who appears 
as a witness before a military court? 

A. For each day of his actual attendance, $1.50; for transpor- 
tation, 5 cents a mile. 

In the States of Wyoming, Montana, Washington, Oregon, 
California, Nevada, Idaho, Colorado, Utah, New Mexico, and Ari- 
zona he will receive $3.00 a day and 15 cents a mile by stage or 
private conveyance and 5 cents a mile by railroad or steamship. 

Q. 45. How are copies of records or papers in the War De- 
partment or at the headquarters of any ^rmy, division, department, 
etc., authenticated! 

A. By the impressed stamp of the bureau or office having 
custody of the originals. 



and the Manual for Courts-Martial 91 

Q. 46. When only are affidavits admissible as evidence before 
a military court? 

A. Only when expressly consented to by the accused with 
full knowledge of his rights. 

Q. 46. What is the rule in respect to statement made by the 
accused? 

A. The accused may make an oral or written statement, but 
it should not be sworn to, and if sworn to, it should not be received 
as evidence by the court. 

Q. 47. In a case of virtual acquittal, what is the correct ex- 
pression to be used? 

A. ''Find the facts as charged, but attach no criminality 
thereto." The term ''guilty" should be employed only when the 
accused iias been convicted of a crime deserving punishment. 

Q. 48. What evidence of previous convictions may be con- 
sidered by courts-martial? 

A. Previous convictions of offenses within one year preceding 
the date of any offense charged and during the current enlistment 
which have been referred to a court-martial by the reviewing 
authority. 

Q. 48. When the proof of previous conviction is the copy fur- 
nished to the company or other commander, what disposition of the 
same should be made after triall 

A. It will be returned to the company or other commander 
and a copy of it attached to the record. 

Q. 49. What punishments are forbidden' 

A. Flogging, branding, marking, or tattooing on the body; 
being required to carry a heavy log; imposing extra tours of guard 
duty. 

Q. 50. What restriction is placed on confinement on bread- 
and-water diet? 

A. It shall not exceed fourteen days at a time, nor be again 
enforced until a period of fourteen days has elapsed, nor shall it 
exceed eighty-four days in one year. 

Q. 65. By whom is an amendment to the record authorized 
to be made? 

A. By the court only when duly reconvened for the purpose, 
and, when made, must be the act of the court as such. 

Q. 65. How are omissions to the record supplied? 



92 



Digest of Davis* Mititary taw of the U. S. 



A. The page and line on which they occur will be stated and 
the corrections given in full. The original record will not be inter- 
lined nor altered in any way? 

Q. 66. Who has power to mitigate the punishment adjudged 
by court-martial? 

A. The officer authorized to order such court-martial. 

Q. 67. In whom is the power to commute sentences vested? 

A. The President of the United States. 

Q. 68. When may the United States Penitentiary at Fort 
Leavenworth, Kansas, be designated as the place of confinement? 

A. When the term of confinement is more than one year. 

Q. 70. How will enlisted men who have been tried be des- 
ignated? 

A. Prior to promulgation of the result, as *' awaiting result 
of trial"; those serving sentences of confinement not involving dis- 
honorable discharge, as ''garrison prisoners"; those sentenced to 
dishonorable discharge, as ''military convicts." 

Q. 70. When may prisoners be placed in irons? 

A. Pursuant to the sentence of a court-martial, or when, in the 
judgment of the commanding officer, a prisoner is a desperate or 
dangerous character. 

Q. 71. When a prisoner is transferred to another post for 
confinement, what papers are required to be forwarded to the com- 
manding officer of the place where the sentence is to be executed? 

A. Discharge papers if discharged, descriptive fist, orders 
promulgating and modifying sentences, statement of conduct while 
under sentence to date of transfer, amd a list of clothing in possession 
of the prisoner when forwarded. 

Q. How much abatement of term of confinement is allowed 
military convicts for good conduct? 

A. Those serving over three months and not over twelve 
months, five days for each complete period of twenty-five days; but 
such abatement in any case shall not have the effect of reducing the 
sentence below three months. 

Those serving sentences exceeding one year will be allowed the 
foregoing abatement for the first year, and thereafter ten days for 
each complete period of twenty days. 

Q. 72. When does the term of confinement begin? 



and the Manual for Courts-Martial 93 

A. When not expressly tixed by the sentence, it begins on the 
date of the order promulgating it. 

Q. 75. ■ Who is the custodian of the records of the proceedings 
of all general courts-martial? 

A. The Judge- Advocate General of the Army. 

Q. 76. Who is the* custodian of the reports of cases tried by 
summary courts and of all proceedings of special courts-martial? 

A. Judge-advocates of departments. 

Q. 78. Who is the summary court when but one commissioned 
officer is present with a command? 

A. The commanding officer. No order will be issued appoint- 
ing the court, but the officer will enter on the record that he is the 
''only officer present with the command." 

Q. 78. How may the accused be tried when he refuses to 
consent in writing to trial by summary court? 

A. He may be tried either by general or special court-martial; 
or by summary court, in which case the sentence cannot exceed 
confinement and forfeiture for more than one month. 

Q. 79. What power has the summary court? 

A. To administer oaths, to hear and determine cases; to 
adjudge punishment. 

Q. 80. What is the procedure of summary courts? 

A. The accused will be arraigned and allowed to plead ac- 
cording to court-martial practice. When the accused pleads ''Not 
guilty," witnesses will be sworn and evidence received, the accused 
being permitted to testify in his own behalf and make a statement, 
but the evidence and statement will not be recorded. 

Q. 81. What is the limit of the punishing power of summary 
courts? 

x\. Punishment may be awarded not to exceed three months' 
confinement and forfeiture, and, in addition thereto, in the case of 
non-commissioned officers, reduction to the ranks, and, in the case 
of first-class privates, reduction to second-class privates. 

Q. 86. By whom and when may a court of inquiry be con- 
vened? 

A. By the President or by any commanding officer upon a 
demand by an officer or soldier whose conduct is to be inquired of. 

Q. 86. What is the jurisdiction of a court of inquiry? 

A. A court of inquiry is convened to examine into the nature 



94 Digest of Davis' Military Law of the U. S. 

of any transaction of, or accusation or imputation against, any 
officer or soldier, and the inquiry is confined to those actually in 
the service. 

It will not give an opinion on the merits of the case unless 
ordered to do so. 

Q. 87. What is the composition of a court of inquiry? 

A. It shall consist of one or more officers, not exceeding three, 
and a recorder. Where the court is composed of two or more 
members and the number is reduced by casualty or challenge, the 
court may proceed with tne reduced number. 

Q. 87. By what is the procedure of a court of inquiry gov- 
erned? 

A. By the general principles of military law, applying the 
analogies of a court-martial where they are applical^le. 

Q. 106. How should the dioberlience of the order of a contract 
surgeon, of a dental surgeon, of a veterinarian, and a non-commis- 
sioned officer be charged? 

A. It should be charged under the 96th Article of War; also the 
disobedience of an order by a military convict. 

Q. 135. How should a simple neglect to comply with a standing 
order be charged? 

A. Under the 96th Article, and not under the 64th, which 
implies a willful defiance of authority. 

Q. 144. When any of the elements of perjury are lacking, how 
will the offense be properly charged? 

A. As "false swearing." 

Q. 146. How are erasures or interlineations in the record au- 
thenticated? 

A. By the initials of the president or the judge-advocate. 

Q. 146. What will the index of the record refer to? 

A. Everything essential to the organization and jurisdiction 
of the court; to the pages where each witness was sworn and re- 
called, and the pages where each document was introduced. 

Q. 148. How will members and the judge-advocate be re- 
corded as present or absent? 

A. By name. 

Q. 148. In the record of the proceedings of subsequent pro- 
ceedings of the same case, what is the form of words to be used? 



and the Manual for Courts-Martial 95 

A. ''Present, all the members of the court and the judge- 
advocate." 

Q. 148. If a member is absent by an order emanating from 
the convening or higher authority, how is this authority recorded? 

A. By giving the number, date, and source of the order. 

Q. 148. If a member is absent from some other cause, how 
should the authority for such absence be shown? 

A. If absent by telegraphic authority, a post order, etc., a 
copy of the authority should be appended to the record; if absent 
sick, a surgeon's certificate of sickness and inability to attend will 
be appended to the record. 

Q. 150. Should the signature and rank of the officer preferring 
the charges be copied into the record? 

A. No. 

Q. 155. How are documents and papers made part of the 
proceedings? 

A. In the order of their introduction, after the space left for 
the remarks of the reviewing authority, and marked in such a 
manner as to afford easy reference. 

Q. 155. How should statements of the accused, or arguments 
in his defense, and all pleas to the jurisdiction in bar of trial or in 
abatement, when in writing, be authenticated? 

A. By the signature of the accused. 

Q. 156. When the judge-advocate records the findings and 
sentence by the use of a typewriting machine, what certificate is 
required immediately after the authentication of the record? 

A. ''I certify that I recorded the findings and sentence of the 

court. , 

*' Judge- Advocate." 

Q. 157. What is done with the record when completed? 

A. The judge-advocate will forward it without delay to the 
convening authority as an inclosure to the indorsement of the judge- 
advocate returning the original charges. 

Q. 158. How is a court-martial usually reconvened? 

A. By indorsement on the original record, returning it to 
the president of the court with the directions of the convening 
authority. 

Q. 158. Who should be present at a revision? 



96 Digest of Davis' Military Law of the U. S. 

A. At least five members of the court who acted upon the trial 
must, and the judge-advocate should, be present. 

Q, 159. How will the record of revision be appended to the 
original proceedings? 

A. It will follow them immediately, before the exhibits, and 
the whole indorsed by the president of the court and forwarded to 
the convening authority. 

Q. 187. How is a reporter for a court-martial paid? 

A. On reporter's pay-vouchers, properly filled out, signed by 
the judge-advocate, and forwarded to the quartermaster, accom- 
panied by copies of the order appointing the court. 

Q. 237. What abatement of their terms of confinement will be 
allowed garrison prisoners? 

A. When serving sentences of one month, five (5) days for 
good conduct; on sentences exceeding one month they will be al- 
lowed the foregoing abatement for the first month and thereafter 
ten (10) days for each complete period of twenty days. 

Q. 239. Whenever a commanding officer places an officer in 
arrest without preferring charges, what report will he make? 

A. He will make a written report of his action to the depart- 
ment commander. In case of officers belonging to a brigade or 
Coast Artillery district, the report will be made to the Coast Ar- 
tillery district commander, who will call upon the officer for any 
explanation he may desire to make, and take such other action 
within his authority as he may tnink necessary, forwarding the 
papers to the department commander. 

Q. 241. When a military commander is the accuser or the 
prosecutor of the person or persons to be tried by a court-martial 
ordered by him, by whom shall such court be appointed? 

A. By superior competent authority. 

Q. 241. When are officers not eligible to sit as members of a 
court-martial? 

A. No officer shall be eligible to sit as a member of such court 
when he is the accuser or a material witness for the prosecution. 

Q. 243. Whose decision is final as to whether or not the ac- 
cused should be tried by special or summary court-martial? 

A. That of the officer exercising special court-martial jurisdic- 
tion over the command to which the accused belongs. 



and the Manual for Courts-Martial 97 

Q. 243. What information should be included in the com- 
manding officer's indorsement forwarding charges? 

A. The name of the officer investigating the case, and a state- 
ment as to whether or not, in his opinion, the charges can be 
sustained. 

Q. 244. "What evidence of previous convictions will be con- 
sidered by general and special courts-martial? 

A. Only such as are referred to them by the convening 
authority. 

Q. 244. Who will detail a counsel for any person who is to 
be tried by a general or special court-martial? 

A. The commanding officer of the post where such court is 
convened, will detail a suitable officer as counsel for the defense. If 
there be no such officer available, that fact will be reported to the 
authority appointing the court for his action. 

Q. 245. What in general are the duties of a counsel for a 
soldier before a general or a special court-martial? 

A. He should guard the interests of the accused by all hon- 
orable and legitimate means known to law, in so far as they are not 
inconsistent with military relations. He should not obstruct the 
proceedings with frivolous and manifestly useless objections. 

Q. 246. How much time is allowed the reporter to furnish the 
typewritten record of the proceedings of each session of the court? 

A. Not later than twenty-four hours after the adjournment 
of that session. The complete record will be finished and ready for 
authentication not later than forty-eight hours after the completion 
of its action by the court. 

Q. 246. What extra pay is allowed an enlisted man detailed 
to ser\^e as a stenographic reporter? 

A. Not to exceed five cents for each 100 words taken in short- 
hand and transcribed. No person in the miUtary or civil service 
can lawfully receive extra compensation for clerical duties per- 
formed for a military court, except as above stated. 

Q. 247. How only can a member not challenged, but who 
thinks himself disquahfied, be relieved from sitting on the trial of 
a case? 

A. By application to the convening authority ; except where a 
member who is or believes himself to be the accuser in the case, 
when he will formally announce that fact to the court, after the ac- 



98 Digest of Davis' Military Law of the U. S. 

ciised is brought before the court and before the court is sworn, 
whereupon he will be excused. 

Q. 247. Under what other circumstances may a member be 
excused? 

A. When the accused, his counsel, the judge-advocate, or any 
member of the court, at any time before^'the finding, shall have 
reason to believe that any member thereof may be the accuser or 
may be a witness for the prosecution, such belief shall be commu- 
nicated to the court, and if the court, after hearing the facts, find 
that such member is the accuser or a witness for the prosecution, he 
shall be excused. 

No member who has been absent during the taking of evidence 
shall thereafter take part in the trial. 

Q. 248. What is the procedure when a civihan witness duly 
subpirnaed before a general court-martial refuses to appear or 
quahfy as a witness? 

A. He will at once be tendered or paid by the nearest pay- 
master one day's fee 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 fees and mileage of civilian wit- 
nesses residing beyond the limits of the State in which the court- 
martial is held will not be paid in advance, as such witnesses cannot 
be punished if they refuse to obey the summons. 

Q. 248. To whom will the judge-advocate forward the inter- 
rogatories for a deposition in the case of a military or civilian witness 
not stationed or residing at or near a post, command, or detachment? 

A. To the commanding general of the department in which 
the witness resides. 

Q. 249. To whom will the interrogatories be forwarded when 
the witness resides at or near a military post, command, or de- 
tachment? 

A. Direct to the commanding officer of the post, command, 
or detachment. 

Q. 249. In the case of a civilian witness, what will accompany 
the interrogatories? 

A. The proper subpoenas and account for a civilian witness 
and a request that the proper data be supplied in the account for 
civilian witness and that the post-office address of the witness be. 



and the Manual for Courts-Martial 99 

given, so that the account may be certified by the judge-advocate 
and transmitted to the proper paymaster for payment. 

Q. 252. How does the record of a special court-martial differ 
from that of a general court? 

A. In the record of a special court-martial statements and 
arguments made before the court will not be recorded, nor will the 
testimony taken before such court be reduced to writing unless 
directed by the authority referring the case to the court for trial. 

Q. 256. How many officers may a special court-martial con- 
sist of? 

A. Any number from three to five, inclusive, and a judge- 
advocate. 

Q. 257. What is the extent of jurisdiction of special courts- 
martial? 

A. They have power to try any person subject to military law, 
except officers and candidates for promotion, for any crime or 
offense not capital made punishable by the Articles of War. 

Q. 257. What is the limit of punishing power of special 
courts-martial? 

A. They have power to adjudge punishment not to exceed 
six months' forfeiture and confinement, and, in addition thereto, 
reduction to the ranks in cases of non-commissioned officers, and re- 
duction in classification in the cases of first-class privates. 



and the Manual for Courts-Martial 101 



Questions and Answers on General Order 
No. 70, War Department, 1914. 

Q. 1. In cases of desertion, what may the sentence be? 
A. Dishonorable discharge and forfeiture of all pay and al- 
lowances due and to become due. 

Q. 1. What is the limit of the term of confinement for deser- 
tion in case of surrender? 

A. (a) When the deserter surrenders himself after an absence 
of not more than thirty days, one year. 
(6) When the surrender is made after an absence of more 
than thirty days, eighteen months. 
Q. 1. In case of apprehension? 

A. (a) When at the time of desertion the deserter shall not 
have been more than six months in the service, 
eighteen months. 
(h) When he shall have been more than six months in the 
service, two and one-half years. 
Q. 6. What substitutions for punishments mentioned in this 
order are authorized? 

A. Forfeiture of one day's pay for confinement at hard labor 
for one day, or the reverse. 

Q. 6. What may the court adjudge in lieu of forfeiture of pay? 
A. It may adjudge detention of pay at the rate of detention 
of one and one-half day's pay for each day of pay the forfeiture of 
which is authorized; but no sentence shall adjudge the detention 
of more than two-thirds of the soldier's pay per month for three 
months. 

Q. 6. What may the court adjudge in lieu of confinement at 
hard labor? 

A. Hard labor without confinement at the rate of one and one- • 
half days of hard labor without confinement for each day of con- 
finement at hard labor authorized; but no sentence shall adjudge 



102 Digest of Davis Military Law of the U. S. 

hard labor without confinement for a greater period than three 
months. 

Q. 6. What is the limit of detention or forfeiture that may be 
adjudged against a soldier who is retained in the service? 

A. Detention or forfeiture of more than two-thirds of his pay 
for any one month shall not, by a single sentence, be adjudged 
against a soldier who is retained in the service, except when such 
retention is under a suspended sentence of dishonorable discharge. 

Q. 7. When may a soldier be sentenced to dishonorable dis- 
charge when convicted of an offense for which dishonorable discharge 
is not authorized? 

A. Upon proof of five previous convictions. 

Q. 7. What is the effect of pay detained pursuant to the sen- 
tence of a court-martial? 

A. It will be detained by the Government until the soldier is 
discharged from his current enlistment, at which time the authority 
for the detention and the amount thereof will be noted on the final 
statement and the amount detained paid to him out of the appro- 
priation for the pay of the Army. 

Q. 11. Enumerate the punishments in order of their severity. 
- A. (a) Detention of pay; 

(b) Forfeiture of pay; 

(c) Reduction; 

(d) Hard labor without confinement; 

(e) Confinement at hard labor; 
(/) Dishonorable discharge. 

Q. 15. What explanation should be made by the president of 
the court when the accused enters a plea of '^uilt}^" in a case tried 
by a general court-martial; and in a case tried by special court- 
martial, when the evidence is reduced. to writing? 

A. It shall appear of record that the meaning of his plea and 
the extent of his punishment was adequately explained to the ac- 
cused, and that the accused was, after such explanation, asked if he 
desires to have the plea of ''guilty" stand. If he replies in the af- 
firmative, the plea of "guilty" will stand; otherwise, a plea of ''not 
guilty" will be entered. 

Q. 15. What is the rule in each case tried by a general court- 
martial, or by a special court-martial when the evidence is reduced 



and the Manual for Courts-Martial 103 

to writing, when the accused does not testify or make any state- 
ment in his behalf? 

A. It shall appear of record that the president of the court 
explained to the accused that he may testify in his own behalf if he 
so desire, or make a statement to the court in denial, in explanation, 
or in extenuation of the offense with which he stands charged. 

Q. 16. How are recommendations to clemency by a court- 
martial, or any member thereof, submitted? 

A. Such recommendations will be signed by each member of 
the court desiring to participate therein. The communication car- 
rying the recommendation will include a statement in succinct form 
of the reasons upon which tne recommendation is based and will be 
appended to the record of trial. 

Q. 16. What reports are required to be made by trial judge- 
advocates? 

A. On Saturday of each week he will report, through the pres- 
ident of the court and the post commander, to the convening au- 
thority, a list of charges on hand, showing the date of receipt of each; 
and if any case has been in the hands of the judge-advocate for one 
week or more and the record of trial has not been forwarded, the 
report will include a statement of the reasons for the delay. 

Q. 17. What rules will be observed when the accused is an 
enlisted man and without counsel? 

A. In so far as such action may be taken without prejudice to 
the rights of the accused, any advice given him by the judge-advo- 
cate should be given or repeated in open court; and in any case in 
which the accused has been advised by the judge-advocate, that 
fact and the general nature of the advice will be noted upon the 
record of trial. 



and the Manual for Courts-Martial 105 



The Revised Articles of War. 



(Revised August 29, 1916.) 

Section 1842. The articles included in this section shall be 
known as the Articles of War and shall at all times and in all places 
govern the armies of the United States. 

I. Preliminary Provisions. 
Article 1. Definitions. — The following words when used in 
these articles shall be construed in the sense indicated in this article, 
unless the context shows that a different sense is intended, namely: 
(a) The word '' officer" shall be construed to refer to a com- 
missioned officer; 
{h) The word ^^soldier" shall be construed as including a non- 
commissioned officer, a private, or any other enlisted 
man; 
(c) The word ^'company" shall be understood as including a 

troop or battery; and 
{d) The word ^'battalion" shall be understood as including a 

squadron. 
Art. 2. Persons Subject to Military Law. — The following per- 
sons are subject to these articles and shall be understood as included 
in the term ^'any person subject to military law,'' or ^'persons 
subject to military law," whenever used in these articles: Provided, 
That nothing contained in this act, except as specifically provided 
in Article 2, subparagraph (c), shall be construed to apply to any 
person under the United States naval jurisdiction, unless otherwise 
specifically provided by law : 

(a) All officers and soldiers belonging to the Regular Army of 
the United States; all volunteers from the dates of their 
muster or acceptance into the military service of the 
United States; and all other persons lawfully called, 
drafted, or ordered into, or to duty or for training in, the 



106 Digest of Davis' Military Law of the 17. S. 

said service, from the dates they are required by the terms 
of the call, draft, or order to obey the same; 
(h) Cadets; 

(c) Officers and soldiers of the Marine Corps when detached 

for service with the armies of the United States by order 
of the President: Provided, That an officer or soldier of 
the Marine Corps when so detached may be tried by 
military court-martial for an offense committed against 
the laws for the government of the naval service prior to 
his detachment, and for an offense committed against 
these articles he may be tried by a naval court-martial 
after such detachment ceases; 

(d) All retainers to the camp and all persons accompanying or 

serving with the armies of the United States without the 
territorial jurisdiction of the United States, and in time 
of war all such retainers and persons accompanying or 
serving with the armies of the United States in the field, 
both within and without the territorial jurisdiction of the 
United States, though not otherwise subject to these 
articles; 

(e) All persons under sentence adjudged by courts-martials; 
(/) All persons admitted into the Regular Army Soldiers' Home 

at Washington, District of Columbia. 

11. Courts-Martial, 
Art. 3. Courts-Martial Classified. — Courts-martial shall be of 
three kinds — namely: first, general courts-martial; second, special 
courts-martial; and third, summary courts-martial. 

(a) COMPOSITION. 

Art. 4. *Who May Serve on Courts-Manial. — All officers in 
the military service of the United States, and officers of the Marine 
Corps when detached for service with the Army by order of the 
President, shall be competent to serve on courts-martial for the tria 
of any persons who may lawfully be brought before such courts! 
for trial. 

Art. 5. General Courts-Martial. — General courts-m.artial may 
consist of any number of officers from five to thirteen, inclusive; 

*Article8 marked * are effective immediately. See Section 4. 



and the Manual for Courts-Martial 107 

but they shall not consist of less than thirteen, when that number 
can be convened without manifest injury to the service. 

Art. 6. Special Courts-Martial. — Special courts-martial may 
consist of any number of officers from three to five, inclusive. 

Art. 7. Summary Courts-Martial. — A summary court-martial 
shall consist of one oflficer. 

(h) BY WHOM APPOI'NTED. 

Art. 8. General Courts-Martial. — The President of the United 
States, the commanding officer of a territorial division or department, 
the Superintendent of the Military Academy, the commanding of- 
ficer of an army, an army corps, a division, or a separate brigade, 
and, when empowered by the President, the commanding officer of 
any district or of any force or body of troops, may appoint general 
courts-martial; but when any such commander is the accuser or the 
prosecutor of the person or persons to be tried, the court shall be 
appointed by superior competent authority, and no officer shall be 
eligible to sit as a member of such court when he is the accuser or a 
witness for the prosecution. 

Art. 9. Special Courts - Martial. — The commanding officer 
of a district, garrison, fort, camp, or other place where troops are on 
duty, and the commanding officer of a brigade, regiment, detached 
battalion, or other detached command, may appoint special courts- 
martial; but when any such commanding officer is the accuser or the 
prosecutor of the person or persons to be tried, the court shall be 
appointed by superior authority, and may in any case be appointed 
by superior authority when by the latter deemed desirable; and no 
officer shall be eligible to sit as a member of such court when he is 
the accuser or a witness for the prosecution. 

Art. 10. Summary Courts-Martial. — The commanding officer 
of a garrison, fort, camp, or other place where troops are on duty, 
and the commanding officer of a regiment, detached battalion, de- 
tached company, or other detachment, may appoint summary 
courts-martial; but such summary courts-martial may in any case 
be appointed by superior authority when by the latter deemed de- 
sirable: Provided, That when but one officer is present with a 
command, he shall be the summary court-martial of that command 
and shall hear and determine cases brought before him. 

Art. 11. Appointment of Judge- Advocates. — For each general 



108 Digest of Davis' Military Law of the U. S. 

or special court-martial, the authority appointing the court shall 
appoint a judge-advocate, and for each general court-martial one 
or more assistant judge-advocates when necessary. 

(c) JURISDICTION. 

Art. 12. General Courts - Martial. — General courts-martial 
shall have power to try any person subject to military law for any 
crime or offense made punishable by these articles and any other 
person who by the law of war is subject to trial by military tribunals: 
Provided, That no officer shall be brought to trial before a general 
court-martial appointed by the Superintendent of the Military 
Academy. 

Art. 13. *Special Courts - Martial. — Special courts - martial 
shall have power to try any person subject to military law, except 
an officer, for any crime or offense not capital made punishable by 
these articles: Provided, That the President may, by regulations, 
which he may modify from time to time, except from the jurisdiction 
of special courts-martial any class or classes of persons subject to 
military law. 

Special courts-martial shall not have power to adjudge dis- 
honorable discharge, nor confinement in excess of six months, nor 
to adjudge forfeiture of more than six months' pay. 

Art. 14. *Summary Courts - Martial. — Summary courts- 
niartial shall have power to try any person subject to military law, 
except an officer, a cadet, or a soldier holding the privilege of a 
certificate of eligibility to promotion, for any crime or offense not 
capital made punishable by these articles: Provided, That non- 
commissioned officers shall not, if they object thereto, be brought to 
trial before a summary court-martial without the authority of the 
officer competent to bring them to trial before a general court- 
martial: Provided further. That the President may, by regulations, 
which he may modify from time to time, except from the jurisdiction 
of summary courts-martial any class or classes of persons subject 
to military law. 

Summary courts-martial shall not have power to adjudge con- 
finement in excess of three months, nor to adjudge the forfeiture of 
more than three months' pay: Provided, That when the summary 
court officer is also the commanding officer, no sentence of such sum- 
mary cour t-martial adjudging confinement at hard labor or forfeiture 

*Effective immediately. 



and the Manual for Courts-Martial 109 

of pay, or both, for a period in excess of one month shall be carried 
into execution until the same shall have been approved by superior 
authority. 

Art. 15. *Not Exclusive. — The provisions of these articles con- 
ferring jurisdiction upon courts-martial shall not be construed as 
depriving military commissions, provost courts, or .other military 
tribunals of concurrent jurisdiction in respect to offenders or offenses 
that by the law of war may be lawfully triable by such military com- 
missions, provost courts, or other military tribunals. 

Art. 16. Officers; How Triable. — Officers shall be triable only 
by general courts-martial, and in no case shall an officer, when it can 
be avoided, be tried by officers inferior to him in rank. 

(d) PROCEDURE. 

Art. 17. Judge-Advocate to Prosecute. — The judge-advocate 
of a general or special coiirt-martial shall prosecute in the name of 
the United States, and shall, under the direction of the court, prepare 
the record of its proceedings. The accused shall have the right to 
be represented before the court by counsel of his own selection for 
his defense, if such counsel be reasonably available, but should he, 
for any reason, be unrepresented by counsel, the judge-advocate 
shall from time to time throughout the proceedings advise the ac- 
cused of his legal rights. 

Art. 18. Challenges. — Members of a general or special court- 
martial may be challenged by the accused, but only for cause stated 
to the court. The court shall determine the relevancy and vaKdity 
taereof, and shall not receive a challenge to more than one member 
at a time. 

Art. 19. Oaths. — The judge-advocate of a general or special 
court-martial shall administer to the members of the court, before 
they proceed UDon any trial, the following oath or affirmation: 
''You, A. B., do swear (or affirm) that you will well and tridy 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 auly administer justice, without partiality, 
favor, or affection, according to the provisions of the rules and ar- 
ticles for the government of the armies of the United States, and if 
any doubt should arise, not explained by said articles, then according 
to your co nscience, the best of your understanding, and the custom 
*E£fective immediately. 



110 Digest of Davis' Military Law of the U. S. 

of war in like cases; and you do further swear (or affirm) that you 
will not divulge the findings or sentence of the court until they shall 
be published by the proper authority/, except to the judge-advocate 
and assistant judge-advocate; neither will you disclose or discover 
the vote or opinion of any particular member of the court-martial, 
unless required to give evidence thereof as a witness by a court of 
justice in due course of law. So help you God." 

When the oath or affirmation has been administered to the 
members of a general or special court-martial, the president of the 
court shall administer to the judge-advocate and to each assistant 
judge-advocate, if any, an oath or affirmation in the following form : 
"You, A. B., do swear (or affirm) that you 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." 

All persons who give evidence before a court-martial shall be 
examined on oath or affirmation in the following form : ''You swear 
(or affirm) that the evidence you shall give in the case now in hearing 
shall be the truth, the whole truth, and nothing but the truth. So 
help you God." 

Every reporter of the proceedings of a court-martial shall, be- 
fore entering upon his duties, make oath or affirmation in the fol- 
lowing form: "You swear (or affirm) that you will faithfully per- 
form the duties of reporter to this court. So help you God." 

Every interpreter in the trial of any case before a court-martial 
shall, before entering upon his duties, make oath or affirmation in 
the following form: "You swear, (or affirm) that you will truly in- 
terpret in the case now in hearing. So help you God." 

In case of affirmation, the closing sentence of adjuration will 
be omitted. 

Art. 20. Continuances. — A court-martial may, for reasonable 
cause, grant a continuance to either party for such time and as often 
as may appear to be just. 

Art. 21. Refusal to Plead. — When the accused, arraigned be- 
fore a court-martial, from obstinacy and deliberate design, stands 
mute or answers foreign to the purpose, the court may proceed to 
trial and judgment as if he had pleaded "not guilty." 

Art. 22. Process to Obtain Witnesses. — Every judge- 
advocate of a general or special court-martial and every summary 
court-martial shall have power to issue the like process to compel 



and the Manual for Courts-Martial 111 

witnesses to appear and testify which courts of the United States, 
having criminal jurisdiction, may lawfully issue; but such process 
shall run to any part of the United States, its territories and 
possessions. 

Art. 23. Refusal to Appear or Testify. — Every person not sub- 
ject to military law who, being duly subpoenaed to appear as a witness 
before any. military court, commission, court of inquiry, or board, 
or before any officer, military or civil, designated to take a deposition 
to be read in evidence before such court, commission, court of in- 
quiry, or board, willfully neglects or refuses to appear, or refuses to 
qualify as a witness, or to testify, or produce documentary evidence 
which such person may have been legally subpoenaed to produce, 
shall be deemed guilty of a misdemeanor, for which such person 
shall be punished on information in the district court of the tlnited 
States or in a court of original criminal jurisdiction in any of the 
territorial possessions of the United States, jurisdiction being hereby 
conferred upon such courts for such purpose; and it shall be the duty 
of the United States district attorney or the officer prosecuting for the 
Government in any such court of original criminal jurisdiction, on the 
certification of the facts to him by the military court, commission, 
court of inquiry, or board, to file an information against and prose- 
cute the person so offending, and the punishment of such person, on 
conviction, shall be a fine of not more than $500 or imprisonment 
not to exceed six months, or both, at the discretion of the court: 
Provided, That the fees of such witness and his mileage, at the rates 
allowed to witnesses attending the courts of the United States, shall 
be duly paid or tendered said witness, such amounts to be paid out 
of the appropriation for the compensation of witnesses. 

Art. 24. Compulsory Self-incrimination Prohibited. — No wit- 
ness before a military court, commission, court of inquiry, or board, 
or before any officer, military or civil, designated to take a deposi- 
tion to be read in evidence before a military court, commission, 
court of inquiry, or board, shall be compelled to incriminate him- 
self or to answer any questions which may tend to incriminate 
or degrade him. 

Art. 25. Depositions — When Admissible. — A duly authenti- 
cated 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 proceeding before a court of inquiry 



Il2 Digest of Davis' Military Law of the U. S. 

or a military board, if such deposition be taken when the witness 
resides, is found, or is about to go beyond the State, Territory, or 
District in which the court, commission, or board is ordered to sit, or 
beyond the distance of one hundred miles from the place of trial or 
hearing, or when it appears to the satisfaction of the court, commis- 
sion, board, or appointing authority that the witness, by reason of 
age, sickness, bodily infirmity, imprisonment, or other reasonable 
cause, is unable to appear and testify in person at the place of trial 
or hearing: Provided, That testimony by deposition may be ad- 
duced for the defense in capital cases. 

Art. 26. Depositions — ^Before Whom Taken. — Depositions to 
be read in evidence before military courts, commissions, courts of 
inquiry, or military boards, or for other use in military administra- 
tion, may be taken before and authenticated by any officer, mihtary 
or civil, authorized by the laws of the United States or by the laws 
of the place where the deposition is taken to administer oaths. 

Art. 27. Courts of Inquiry — Records of, When Admissible. — 
The record of the proceedings of a court of inquiry may be read in 
evidence before any court-martial or military commission in any 
case not capital nor extending to the dismissal of an officer, and may 
also be read in evidence in any proceeding before a court of inquiry 
or a military board: Provided, That such evidence may be ad- 
duced by the defense in capital cases or cases extending to the 
dismissal of an officer. 

Art. 28. Resignation without Acceptance Does Not Release 
Officer. — Any officer who, having tendered his resignation and prior 
to due notice of the acceptance of the same, quits his post or proper 
duties without leave and with intent to absent himself permanently 
therefrom shall be deemed a deserter. 

Art. 29. *Enlistment without Discharge. — Any soldier who, 
without having first received a regular discharge, again enlists in 
the Army, or in the militia when in the service of the United States, 
or in the Kavy or Marine Corps of the United States, or in any 
foreign army, shall be deemed to have deserted the service of the 
United States; and, where the enlistment is in one of the forces 
of the United States mentioned above, to have fraudulently on- 
listed therein. 

Art. 30. Closed Sessions.- Whenever a general or special 
court-mar tial shall sit in closed session, the judge-advocate and the 
♦Effective immediately. 



and the Manual for Courts-Martial 113 

assistant judge-advocate, if any, shall withdraw; and when their 
legal advice or tl eir assistance in referring to the recorded evidence 
is required, it s lall be obtained in open court, and in the presence 
of the accused and of his counsel, if there be any. 

Art. 81. Order of Voting, — Members of a general or special 
court-martial, in giving their votes, shall begin with the junior 
in rank. 

Art. 32. Contempts. — A court-martial may punish at discre- 
tion, subject to the limitations contained in Article 14, any person 
who uses any menacing words, signs, or gestures in its presence, or 
who disturbs its proceedings by any riot or disorder. 

Art. 33. Records — General Court - Martial. — Each general 
court-martial shall keep a separate record of its proceedings in the 
trial of each case brought before it, and such record shall be authen- 
ticated by the signature of the president and the judge-advocate; 
but in case the record cannot be authenticated by the judge-advocate 
by reason of his death, disability, or absence, it shall be signed by 
the president and an assistant judge-advocate, if any; and if there 
be no assistant judge-advocate, or in case of his death, disability, or 
absence, then by the president and one other member of the court. 

Art. 34. Records — Special and Summary Courts-Martial. — 
Each special court-martial and each summary court-martial shall 
keep a record of its proceedings, separate for each case, which record 
shall contain such matter and be authenticated in such manner as 
may be required by regulations which the President may from time 
to time prescribe. 

Art. 35, Disposition of Records — General Courts-Martial. — 
The judge-advocate of each general court-martial shall, with such 
expedition as circumstances may permit, forward to the appointing 
authority or to his successor in command the original record of the 
proceedings of such court in the trial of each case. All records of 
such proceedings shall, after having been finally acted upon, be 
transmitted to the Judge- Advocate General of the Army. 

Art. 36. Disposition of Records — Special and Summary 
Court-Martial. — After having been acted upon by the officer ap- 
pointing the court or by the officer commanding for the time being, 
the record of each trial by special court-martial and a report of each 
trial by summary court-martial shall be transmitted to such general 
headquarters as the President may designate in regulations, there 



114 Digest of Davis' Military Law of the U. S. 

to be filed in the office of the judge-advocate. When no longer of 
use, records of special and summary courts - martial may be 
destroyed. 

Art. 37. Irregularities — Effect of. — The proceedings of a 
court-martial shall not be held invalid, nor the findings or sentence 
disapproved, in any case on the ground of improper admission or 
rejection of evidence or for any error as to any matter of pleading or 
procedure unless in the opinion of the reviewing or confirming au- 
thority, after an examination of the entire proceedings, it shall ap- 
pear that the error complained of has injuriously affected the sub- 
stantial rights of an accused: Provided, That the act or omission 
upon which the accused has been tried constitutes an offense de- 
nounced and made punishable by one or more of these articles: 
Provided further. That the omission of the words ^^hard labor" in 
any sentence of a court-martial adjudging imprisonment or confine- 
ment shall not be construed as depriving the authorities executing 
such sentence of imprisonment or confinement of the power to require 
hard labor as a part of the punishment in any case where it is au- 
thorized by the Executive order prescribing maximum punishments. 

Art. 38. President May Prescribe Rules. — The President may 
by regulations, which he may modify from time to time, prescribe 
the procedure, including modes of proof, in cases before courts- 
martial, courts of inquiry, military commissions, and other military 
tribunals: Provided, That nothing contrary to or inconsistent 
with these articles shall be so prescribed: Provided further. That 
all rules made in pursuance of this article shall be laid before the 
Congress annually. 

(e) LIMITATIONS UPON PROSECUTIONS. 

Art. 39. As to Time. — Except for desertion committed in time 
of war or for mutiny or murder, no person subject to mihtary law 
shall be liable to be tried or punished by a court-martial for any 
crime or offense committed more than two years before the arraign- 
ment of such person : Provided, That for desertion in time of peace 
or for any crime or offense punishable under Articles 93 and 94 of this 
code the period of limitations upon trial and punishment by court- 
martial shall be three years: Provided further. That tl e period of 
any absence of the accused from the jurisdiction of the United 
States, and also any period durins: which by reason of som.e manifest 



and the Manual for Courts-Martial 115 

impediment the accused shall not have been amenable to military 
justice, shall be excluded in computing the aforesaid periods of limi- 
tation: And provided further. That this article shall not have the 
effect to authorize the trial or punishment for any crime or offense 
barred by the provisions of existing law. 

Art. 40. As to Number. — No person shall be tried a second 
time for the same offense. 

(/) PUNISHMENTS. 

Art. 41. Certain Kinds Prohibited. — Punishment by flogging, 
or by branding, marking, or tattooing on the body, is prohibited. 

Art. 42. *Places of Confinement — When Lawful. — Except for 
desertion in time of war, repeated desertion in tim.e of peace, and 
mutin}^, no person shall, under the sentence of a court-martial, be 
punished by confinement in a penitentiary unless an act or omission 
of which he is comvicted is recognized as an offense of a civil nature 
by some statute of the United States, or at the common law as the 
same exists in the District of Columbia, or by way of commutation 
of a death sentence, and unless, also, the period of confinement au- 
thorized and adjudged by such court-martial is one year or more: 
Provided, That when a sentence of confinemjent is adjudged by a 
court-m^.rtial upon conviction of two or more acts or omissions any 
one of which is punishable under these articles by confinement in a 
penitentiary, the entire sentence of confinement may be executed 
in a penitentiary: Provided further. That penitentiary confine- 
ment hereby authorized may be served in any penitentiary directly 
or indirectly under the jurisdiction of the United States: Provided 
further. That persons sentenced to dishonorable discharge and to 
confinement not in a penitentiary shall be confined in the United 
States Disciplinary Barracks or elsewhere as the Secretary of War 
or the reviewing authority may direct, but not in a penitentiary. 

Art. 43. Death Sentence — When Lawful. — No person shall, 
by general court-martial, be convicted of an offense for which the 
death penalty is made mandatory by law, nor sentenced to suffer 
death except by the concurrence of two-thirds of the members of 
said court-martial and for an offense in these articles expressly 
made punishable by death. All other convictions and sentences, 
whether by general or special court-martial, may be determined by a 
majority o f the members present. 
*Effective immediately. 



116 Digest of Davis' Military Law of the U. S. 

Art. 44. Cowardice; Fraud — Accessory Penalty. — When an 
officer is dismissed from the service for cowardice or fraud, t.ie crime, 
punishment, namie, and place of abode of the delinquent shall be 
published in the newspapers in and about the camp and in the State 
from which the offender came or where he usually resides, and after 
such publication it shall be scandalous for an officer to associate 
with him. 

Art. 45. Maximum Limits. — Whenever the punishment for a 
crime or offense made punishable by these articles is left to the dis- 
cretion of the court-martial, the punishment shall not, in time of 
peace, exceed such limit or limits as the President may from time to 
time prescribe. 

(gr) ACTION BY APPOINTING OR SUPERIOR AUTHORITY. 

Art. 46. Approval and Execution of Sentence. — No sentence 
of a court-martial sliall be carried into execution until the same shall 
have been approved by the officer appointing the* court or by the 
officer commanding for the time being. 

A^T. 47. *Powers Incident to Power to Approve. — The power 
to approve the sentence of a court-martial shall be held to include: 
(a) The power to approve or disapprove a finding and to ap- 
prove only so much of a finding of guilty of a particular 
offense as involves a finding of guilty of a lesser iiicluded 
offense w^hen, in the opinion of the authority having 
power to approve, the evidence of record requires a 
finding of only the lesser degree of guilt; and 
(6) The power to approve or disapprove the whole or any part 

of the sentence. 
Art. 48. Confirmation — When Required. — In addition to the 
approval required by Article 46, confirmation by the President is 
required in the following cases before the sentence of a court-martial 
is carried into execution, namely: 

(a) Any sentence respecting a general officer; 
(6) Any sentence extending to the dismissal of an officer, except 
that in time of war a sentence extending to the dismissal 
of an officer below the grade of brigadier general may be 
carried into execution upon confirmation by the com- 
manding general of the army in the field or by the com- 
manding general of the territorial department or division; 

*Effective immediately. 



and the Manual for Courts-Martial 117 

(c) Any sentence extending to the suspension or dismissal of a 

cadet; and 

(d) Any sentence of death, except in the cases of persons con- 

victed in time of war of murder, rape, mutiny, desertion, 
or as spies; and in such excepted cases a sentence of death 
may be carried into execution upon confirmation by the 
commanding general of the army in the field or by the 
commanding general of the territorial department or 
division. 
When the authority competent to confirm the sentence has al- 
ready acted as the approving authority, no additional confirmation 
by him is necessary. 

Art. 49. *Powers Incident to Power to Confirm. — The power 
to confirm the sentence of a court-martial shall be held to include: 
(a) The power to confirm or disapprove a finding, and to con- 
firm* so much only of a finding of guilty of a particular 
offense as involves a finding of guilty of a lesser included 
offense when, in the opinion of the authority having power 
to confirm, the evidence of record requires a finding of 
only the lesser degree of guilt; and 
(6) The power to confirm or disapi)rove the whole or any part 

of the sentence. 
Art. 50. Mitigation or Remission of Sentences. — The power 
to order the execution of the sentence adjudged by a court-martial 
shall be held to include, inter alia, the power to mitigate or remit 
the whole or any part of the sentence; but no sentence of dismissal 
of an officer and no sentence of death shall be mitigated or remitted 
by any authority inferior to the President. 

Any unexecuted portion of a sentence adjudged by a court- 
martial may be mitigated or remitted by the military authority 
competent to appoint for the command, exclusive of penitentiaries 
and the United States Disciplinary Barracks, in which the person 
under sentence is held, a court of the kind that imposed the sentence, 
and the same power may be exercised by superior military au- 
thority; but no sentence extending to the dismissal of an officer or 
loss of files, no sentence of death, and no sentence approved or con- 
firmed by the President shall be remitted or mitigated by any other 
authority. 



118 Digest of Davis' Military Law of the U. 5*. 

The power of remission and mitigation shall extend to all un- 
collected forfeitures adjudged by sentence of a court-martial. 

Art. 51. Suspension of Sentences of Dismissal or Death. — 
The authority compotent to order the execution of a sentence of 
dismissal of an officer or a sentence of death may suspend such sen- 
tence until the pleasure of the President be known, and in case of 
such suspension a copy of the order of suspension, together with a 
copy of the record of trial, shall immediately be transmitted to the 
President. 

Art. 52. Suspension of Sentence of Dishonorable Discharge. 
— The authority competent to order the execution of a sentence 
including dishonorable discharge may suspend the excution of the 
dishonorable discharge until the soldier's release from confinement; 
but the order of suspension may be vacated at any time and the exe- 
cution of the dishononorable discharge directed by the officer having 
general court-martial jurisdiction over the commaifd, exclusive of 
penitentiaries and the tJnited States Disciplinary Barracks, in which 
the soldier is held, or by the Secretary of War. 

Art. 53. Suspension of Sentences of Forfeiture or Confine- 
ment. — The authority competent to order the execution of a sen-- 
tence adjudged by a court-martial may, if the sentence involve 
neither dismissal nor dishonorable discharge, suspend the execution 
of the sentence in so far as it relates to the forfeiture of pay or to con- 
finement, or to both; and the person under sentence may be restored 
to duty during the suspension of confinement. At any time within 
one year after the date of the order of suspension such order may, 
for sufficient cause, be vacated and the execution of the sentence 
directed by the military authority competent to order the execution 
of like sentences in the command, exclusive of penitentiaries and the 
United States Disciplinary Barracks, to which the person under 
sentence belongs or in which he may be found; but if the order of 
suspension be not vacated within one year after the date thereof, the 
suspended sentence shall be held to have been remitted. 
III. Punitive Articles. 
(a) enlistment; muster; returns. 

Art. 54. Fraudulent Enlistment. — Any person who shall pro- 
cure himself to be enlisted in the military service of the United 
States by means of willful misrepresentation or concealment as to 



and the Manual for Courts-Martial 119 

his qualifications for enlistment, and shall receive pay or allowances 
under such enlistment, shall be punished as a court-martial may 
direct. 

Art. 55. Officer Making Unlawful Enlistment. — Any officer 
who knowingly enlists or musters into the military service any 
person whose enlistment or muster in is prohibited by law, regula- 
tions, or orders shall be dismissed from the service or suffer such 
other punishment as a court-martial may direct. 

Art. 56. Muster-RoUs — False Muster. — At every muster of 
a regiment, troop, battery, or company the commanding officer 
thereof shall give to the mustering officer certificates, signed by 
himself, stating how long absent officers have been absent and the 
reasons of their absence. And the commanding officer of every 
troop, battery, or company shall give like certificates, stating how 
long absent non-commissioned officers and private soldiers have 
been absent and the reasons of their absence. Such reasons and 
time of absence shall be inserted in the muster-rolls opposite the 
names of the respective absent officers and soldiers, and the certi- 
ficates, together with the muster-rolls, shall be transmitted by the 
mustering officer to the Department of War as speedily as the dis- 
tance of the place and muster will admit. Any officer who know- 
ingly makes a false muster of man or animal, or who signs or directs 
or allows the signing of any muster-roll knowing the same to contain 
a false muster or false statement as to the absence or pay of an 
officer or soldier, or who wrongfully takes money or other considera- 
tion on mustering in a regiment, company, or other organization, 
or on signing muster-rolls, or who knowingly musters as an officer 
or soldier a person who is not such officer or soldier, shall be dis- 
missed from the service and suffer such other punishment as a 
court-martial may direct. 

Art. 57. False Returns — Omission to Render Returns. — 
Every officer commanding a regiment, an independent troop, bat- 
tery, or company, or a garrison, shall, in the beginning of every 
month, transmit through the proper channels, to the Department 
of War, an exact return of the same, specifying the names of the 
officers then absent from their posts, with the reasons for and the 
time of their absence. Every officer whose duty it is to render to 
the War Department or other superior authority a return of the 
state of the troops under his command, or of the arms, ammunition, 



120 Digest of Davis' Military Law of the Ih S. 

clothing, funds, or other property thereunto belonging, who know- 
ingly makes a false return thereof shall' be dismissed from the service 
and suffer such other punishment as a court-martial may direct; 
and any officer who, through neglect or design, omits to render such 
return shall be punished as a court-martial may direct. 

ih) desertion; absence without leave. 

Art. 58. Desertion. — Any person subject to military law who 
deserts or attempts to desert the service of the United States shall, 
if the offense be committed in time of war, suffer death or such other 
punishment as a court-martial may direct, and if the offense be com- 
mitted at any other time, any punishment, excepting death, that a 
court-martial may direct. 

Art. 59. Advising or Aiding Another to Desert. — Any person 
subject to military law who advises or persuades or knowingly as- 
sists another to desert the service of the United States shall, if the 
offense be committed in time of war, suffer death or such other pun- 
ishment as a court-martial may direct, and if the offense be com- 
mitted at any other time, any punishment, excepting death, that a 
court-martial may direct. 

Art. 60. Entertaining a Deserter. — Any officer who, after 
having discovered that a soldier in nis command is a deserter from 
the military or naval service or from the Marine Corps, retains such 
deserter in his command without informing superior authority or the 
commander of the organization to which the deserter belongs shall 
be punished as a court-martial may direct. 

Art. 61. Absence without Leave. — Any person subject to 
military law who fails to report at the fixed time to the properly 
appointed place of duty, or goes from the same without proper 
leave, or absents himself from the command, guard, quarters, sta- 
tion, or camp without proper leave, shall be punished as a court- 
martial may direct. 

(c) disrespect; insubordination; mutiny. 
Art. 62. Disrespect Toward the President, Vice-President, 
Congress, Secretary of War, Governors, Legislatures. — Any officer 
who uses contemptuous or disrespectful words against the President, 
Vice-President, the Congress of the United States, the Secretary of 
War, or the governor or legislature of any State, Territory, or other 



and the Manual for Courts-Martial 121 

possession of the United States in which he is quartered shall be dis- 
missed from the service or suffer such other punishment as a court- 
martial may direct. Any other person subject to military law who 
offends shall be punished as a court-martial may direct. 

Art. 63. Disrespect Toward Superior Officer. — Any person 
subject to military law who behaves himself with disrespect toward 
his superior officer shall be punished as a court-martial may direct. 

Art. 64. Assaulting or Willfully Disobeying Superior Officer. — 
Any person subject to mihtary law who, on any pretense whatso- 
ever, strikes his superior officer or draws or lifts up any weapon or 
offers any violence against him, being in the execution of his office, 
or willfully disobeys any lawful command of his superior officer, shall 
suffer death or such other punishment as a court-martial may direct. 

Art. 65. Insubordinate Conduct Toward Non-commissioned 
Officer. — Any soldier who strikes or assaults, or who attempts or 
threatens to strike or assault, or willfully disobeys the lawful order 
of a non-commissioned officer while in the execution of his office, or 
uses threatening or insulting language, ot behaves in an insubor- 
dinate or disrespectful manner toward a non-commissioned officer 
while in the execution of his office, shall be punished as a court- 
martial may direct. 

Art. 66. Mutiny or Sedition. — Any person subject to military 
law who attempts to create or who begins, excites, causes, or joins in 
any mutiny or sedition in any company, p^rty, post, camp, detach- 
ment, guard, or other command shall suffer death or such other pun- 
ishment as a court-martial may direct. 

Art. 67. Failure to Suppress Mutiny or Sedition. — Any officer 
or soldier who, being present at any mutiny or sedition, does not use 
his utmost endeavor to suppress the same, or knowing or having 
reason to believe that a mutiny or sedition is to take place, does not 
without delay give information thereof to his commanding officer, 
shall suffer death or such other punishment as a court-martial may 
direct. 

Art. 68. Quarrels; Frays; Disorders. — All officers and non- 
commissioned 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 con- 
finement, as circumstances may require, until their proper superior 



122 Digest of Davis' Military Law of the U. S. 

officer is acquainted therewith. And whosoever, being so ordered, 
refuses to obey such officer or non-commissioned officer or draws a 
weapon upon or otherwise threatens or does violence to him shall be 
punished as a court-martial may direct. 

{d) arrest; confinement. 

Art. 69. Arrest or Confinement of Accused Persons. — An of- 
ficer charged with crime or with a serious offense under these articles 
shall be placed in arrest by the commanding officer, and in excep- 
tional cases an officer so charged may be placed in confinement by 
the same authority. A soldier charged with crime or with a serious 
offense under these articles shall be placed in confinement, and when 
charged with a minor offense he may be placed in arrest. Any other 
person subject to military law charged with crime or with a serious 
offense under these articles shall be placed in confinement or in arrest, 
as circumstances may require; and when charged with a minor offense 
such person may be placed in arrest. Any person placed in arrest 
under the provisions of this article shall thereby be restricted to his 
barracks, quarters, or tent, unless such limits shall be enlarged by 
proper authority. Any officer who breaks his arrest or who escapes 
from confinement before he is set at liberty by proper authority shall 
be dismissed from the service or suffer such other punishment as a 
court-martial may direct; and any other person subject to military 
law who escapes from confinement or who breaks his arrest before 
he is set at liberty by proper authority shall be punished as a court- 
martial may direct. 

Art. 70. Investigation of and Action upon Charges. — No per- 
son put in arrest shall be continued in confinement more than eight 
days, or until such time as a court-martial can be assembled. When 
any person is put in arrest for tne purpose of trial, except at remote 
military posts or stations, the officer by whose order he is arrested 
shall see that a copy of the charges on which he is to be tried is 
served upon him within eight days after his arrest, and that he is 
brought to trial within ten days thereafter, unless the necessities of 
the service prevent such trial; and then he shall be brought to trial 
within thirty days after the expiration of said ten days. If a copy 
of the charges be not served, or the arrested person be not brought 
to trial, as herein required, the arrest shall cease. But persons released 
from arrest, under the provisions of this article, may be tried, when- 



and the Manual for Courts-Martial 123 

ever the exigencies of the service shall permit, within twelve months 
after such release from arrest: Provided, That in time of peace no 
person shall, against his objection, be brought to trial before a 
general court-martial within a period of five days subsequent to the 
service of charges upon him. 

Art. 71. Refusal to Receive and Keep Prisoners. — No pro- 
vost marshal or commander of a guard shall refuse to receive or 
keep anv prisoner committed to his charge by an officer belonging 
to the forces of the United States, provided the officer committing 
shall, at the time, deliver an account in writing, signed by himself, of 
the crime or offense charged against the prisoner. Any officer or 
soldier so refusing shall be punished as a court-martial may direct. 

Art. 72. Report of Prisoners Received. — Every commander 
of a guard to whose charge a prisoner is committed shall, within 
twenty-four hours after such confinement, or as soon as he is re- 
lieved from his guard, report in writing to the commanding officer 
the name of such prisoner, the offense charged against him, and the 
name of the officer committing him; and if he fails to make such 
report, he shall be punished as a court-martial may direct. 

Art. 73. Releasing Prisoner without Proper Authority. — Any 
person subject to military law who, without proper authority, re- 
leases any prisoner duly committed to his charge, or who through 
neglect or design suffers any prisoner so committed to escape, shall 
be punished 'as a court-martial may direct. 

Art. 74. Delivery of Offenders to Civil Authorities. — When 
any person subject to military law, except one who is held by the 
military authorities to answer, or who is awaiting trial or result of 
trial, or who is undergoing sentence for a crime or offense punishable 
under these articles, is accused of a crime or offense committed 
within the geographical limits of the States of the Union and the 
District of Columbia, and punishable by the laws of the land, the 
commanding officer is required, except in time of war, upon appHca- 
tion duly made, to use his utmost endeavor to deliver over such ac- 
cused person to the civil authorities, or to aid the officers of justice 
in apprehending and securing him in order that he may be brought 
to trial. Any commanding officer who upon such application re- 
fuses or willfully neglects, except in time of war, to deliver over such 
accused person to the civil authorities, or to aid the officers of justice 
in apprehending and securing him, shall be dismissed from the 



124 Digest of Davis' Military Law of the U. S. 

service or suffer such other punishment as a court-martial may 
direct. 

When, under the provisions of this article, delivery is made to 
the civil authorities of an offender undergoing:!: sentence of a court- 
martial, such delivery, if followed by conviction, shall be held to 
interrupt the execution of the sentence of the court-martial, and 
the offender shall be returned to military custody, after having 
answered to the civil authorities for his offense, for the completion 
of the said court-martial sentence. 

(e) WAR OFFENSES. 

Art. 75. Misbehavior Before the Enemy. — An officer or soldier 
who misbehaves himself before the enemy, runs away, or shamefully 
abandons or deUvers up any fort, post, camp, guard, or other com- 
mand which it is his duty to defend, or speaks words inducing others 
to do the like, or casts away nis arms or ammunition, or quits nis 
post or colors to plunder or pillage, or by any means whatsoever 
occasions false alarms in camp, garrison, or quarters, shall suffer 
death or such other punishment as a court-martial may direct. 

Art. 76. Subordinates Compelling Commander to Surrender. 
— If any commanaer of any garrison, fort, post, camp, guard, or 
other command is compelled, by the officers or soldiers under his 
command, to give it up to the enemy or to abandon it, the officers 
or soldiers so offending shall suffer death or such other punishment 
as a court-martial may direct. 

Art. 77. Improper Use of Coimtersigu. — Any person subject 
to military law who makes known the parole or countersign to any 
person not entitled to receive it according to the rules and discipline 
of war, or gives a parole or countersign different from that which he 
received, shall, if the offense be committed in time of war, suffer 
death or such other punishment as a court-martial may direct. 

Art. 78. Forcing a Safeguard. — Any person subject to military 
law who, in time of war, forces a safeguard shall suffer death or such 
other punishment as a court-martial may direct. 

Art. 79. Captured Property to Be Secured for Public Service. 
— All public property taken from the enemy is the property of the 
United States and shall be secured for the service of the United 
States, and any person subject to military law who neglects to 



and the Manual for Courts-Martial 125 

secure such property or is guilty of wrongiful appropriation thereof 
shall be punished as a court-martial may direct. 

Art. 80. Dealing in Captured or Abandoned Property. — Any 
person subject to military law who buys, sells, trades, or in any way 
deals in or disposes of captured or abandoned property, whereby he 
shall receive or expect any profit, benefit, or advantage to himself 
or to any person directly or indirectly connected with himself, or 
who fails, whenever such property comes into his possession or cus- 
tody or within his control, to give notice thereof to the proper au- 
thority and to turn over such property to the proper authority 
without delay, shall, on conviction thereof, be punished by fine or 
imprisonment, or by such other punishment as a court-martial, 
military commission, or other military tribimal may adjudge, or by 
any or all of said penalties. 

Art. 81. Relieving, Corresponding with, or Aiding the Enemy. 
— Whosoever relieves the enemy with arms, ammunition, supplies, 
money, or other thing, or knowingly harbors or protects or holds 
correspondence with or gives intelligence to the enemy, either di- 
rectly or indirectly, shall suffer death or such other punishment as a 
court-martial or military commission may direct. 

Art. 82. Spies. — Any person who in time of war shall be 
found lurking or acting as a spy in or about any of the fortifications, 
posts, quarters, or encampments of any of the armies of the United 
States, or elsewhere, shall be tried by a general court-martial or by a 
militarj^ commission, and shall, on conviction thereof, suffer death. 

(/) MISCELLANEOUS CRIMES AND OFFENSES. 

Art. 83. Military Property — Willful or Negligent Loss, Dam- 
age, or Wrongful Disposition of. — Any person subject to mihtary 
law who willfully or through neglect suffers to be lost, spoiled, dam- 
aged, or wrongfully disposed of any military property belonging to 
the United States shall make good the loss or damage and suffer 
such punishment as a court-martial may direct. 

Art. 84. Waste or Unlawful Disposition of Military Property 
Issued to Soldiers. — Any soldier who sells or wrongfully disposes of, 
or willfully or through neglect injures or loses, any horse, arms, am- 
munition, accouterments, equipment, clothing, or other property 
issued for use in the military service shall be punished as a court- 
martial may direct 

Art. 85. Drunk on Duty. — Any officer who is found drunk on 



126 Digest of Davis' Military Law of the U. S. 

duty shall, if the offense be committed in time of war, be dismissed 
from the service and suffer such other punishment as a court-martial 
may direct; and if the offense be committed in time of peace, he 
shall be punished as a court-martial may direct. Any person subject 
to military law, except an officer, who is drunk on duty shall be 
punished as a court-martial may direct. 

Art. 86. Misbehavior of Sentinel. — Any sentinel who is found 
drunk or sleeping upon his post, or who leaves it before he is regularly 
relieved, shall, if the offense be committed in time of war, suffer death 
or such other punishment as a court-martial may direct; and if the 
offense be committed in time of peace, he shall suffer any punish- 
ment, except death, that a court-martial may direct. 

Art. 87. Personal Interest in Sale of Provisions. — Any officer 
commanding in any garrison, fort, barracks, camp, or other place 
where troops of the United States may be serving who, for his private 
advantage, lays any duty or imposition upon or is interested in the 
sale of any victuals or other necessaries of life brought into such 
garrison, fort, barracks, camp, or other place for the use of the troops 
shall be dismissed from the service and suffer such other punishment 
as a court-martial may direct. 

Art. 88. Intimidation of Persons Bringing Provisions. — Any 
person subject to military law who abuses, intimidates, does violence 
to, or wrongfully interferes with any person bringing provisions, 
supplies, or other necessaries to the camp, garrison, or quarters of 
the forces of the United States shall suffer such punishment as a 
court-martial may direct. 

Art. 89. Good Order to Be Maintained and Wrongs Re- 
dressed. — All persons subject to military law are to behave them- 
selves orderly in quarters, garrison, camp, and on the march; and 
any person subject to military law who commits any waste or spoil, 
or willfully destroys any property whatsoever (unless by order of his 
commanding officer), or commits any kind of depredation or riot, 
shall be punished as a court-martial may direct. Any commanding 
officer who, upon complaint made to him, refuses or omits to see 
reparation made to the party injured, in so far as the offender's pay 
shall go toward such reparation, as provided for in Article 105, shall 
be dismissed from the service, or otherwise punished, as a court- 
martial may direct' 

Art. 90. Provoking Speeches or Gestures.— No person subject 



and the Manual for Courts-Martial 127 

to military law shall use any reproachful or provoking speeches or 
gestures to another; and any person subject to military law who 
offends against the provisions of this article shall be punished as a 
court-martial may direct. 

Art. 91. Dueling. — Any person subject to military law who 
fights or promotes or is concerned in or connives at fighting a duel, 
or who; having knowledge of a challenge sent or about to be sent, 
fails to report the fact promptly to the proper authority, shall, if an 
officer, be dismissed from the service or suffer such other punishment 
as a court-martial may direct; and if any other person subject to 
military law, shall suffer such punishment as a court-martial may 
direct. 

Art. 92. *Murder; Rape. — Any person subject to military 
law who commits murder or rape shall suffer death or imprisonment 
for life, as a court-martial may direct; but no person shall be tried 
by court-martial for murder or rape committed within the geo- 
graphical limits of the States of the Union and the District of Co- 
lumbia in time of peace. 

Art. 93. Various Crimes. — Any person subject to military 
law who commits manslaughter, mayhem, arson, burglary, robbery, 
larceny, embezzlement, perjury, assault with intent to commit any 
felony, or assault with intent to do bodily harm shall be punished 
as a court-martial may direct. 

Art. 94. Frauds Against the Government. — Any person subject 
to military law who makes or causes to be made any claini against 
the United States or any officer thereof, knowing such claim to be 
false or fraudulent; or 

Who presents or causes to be presented to any person in tlie 
civil or military service thereof, for approval or payment, any claim 
against the United States or any officer thereof, knowing such claim 
to be false or fraudulent; or 

Who enters into any agreement or conspiracy to defraud the 
United States by obtaining, or aiding others to obtain, the allowance 
or payment of any false or fraudulent claim; or 

Who, for the purpose of obtaining, or aiding others to obtain, 
the approval, allowance, or payment of any claim against the United 
States or against any officer thereof, makes or uses, or procures or 
advises the making or use of any writing or other paper, knowing 
the same t o contain any false or fraudulent statements; or 

♦Effective immediately. 



128 Digest of Davis' Military Law of the U. S. 

Who, for the purpose of obtaining, or aiding others to obtain, 
the approval, allowance, or payment of any claim against the United 
States or any officer thereof makes, or procures or advises the mak- 
ing of any oath to any fact or to any writing or other paper, know- 
ing such oath to be false; or 

Who, for the purpose of obtaining, or aiding others to obtain, 
the approval, allowance, or payment of any claim against the 
United States or any officer thereof, forges or counterfeits, or pro- 
cures or advises the forging or counterfeiting of any signature upon 
any writing or other paper, or uses, or procures or advises the use 
of any such signature, knowing the same to be forged or counter- 
feited; or 

Who, having charge, possession, custody, or control of any 
money or other property of the United States, furnished or intended 
for the military service thereof, knowingly delivers or causes to be 
delivered, to any person having authority to receive the same, any 
amount thereof less than that for which he receives a certificate or 
receipt; or 

Who, being authorized to make or deliver any paper certifying 
the receipt of any property of the United States furnished or in- 
tended for the military service thereof, makes or delivers to any 
person such writing, without having full knowledge of the truth of 
the statements therein contained and with intent to defraud the 
United States; or 

Who steals, embezzles, knowingly and willfully misappropriates, 
applies to his own use or benefit, or wrongfully or knowingly sells 
or disposes of any ordnance, arms, equipmients, ammunition, cloth- 
ing, subsistence stores, money, or other property of the United 
States furnished or intended for the miUtary service thereof; or 

Who knowingly purchases or receives in pledge for any obliga- 
tion or indebtedness from any soldier, officer, or other person who 
is a part of or employed in said forces or service any ordnance, 
arms, equipment, ammunition, clothing, subsistence stores, or other 
property of the United States, such soldier, officer, or other person 
not having lawful right to sell or pledge the same; 

Shall, on conviction thereof, be punished by fine or imprison- 
ment or by such other punishment as a court-martial may adjudge, 
or by any or all of said penalties. And if any person, being guilty 
of any of the offenses aforesaid while in the mihtary service of the 



and the Manual for Courts-Martial 129 

United States, receives his discharge or is dismissed from the service, 
he shall continue to be liable to be arrested and held for trial and 
sentence by a court-martial in the same manner and to the same 
extent as if he had not received such discharge nor been dismissed. 

Art. 95. Conduct Unbecoming an Officer or Gentleman. — Any 
officer or cadet who is convicted of conduct unbecoming an officer 
and a gentleman shall be dismissed from the service. 

Art. 96. General Article. — Though not mentioned in these 
articles, ail disorders and neglects to the prejudice of good order and 
military discipHne, all conduct of a nature to bring discredit upon 
the miUtary service, and all crimes or offenses not capital, of which 
persons subject to mihtary law may be guilty, shall be taken cogniz- 
ance of by a general or special or summary court-martial, according 
to the nature and degree of the offense, and punished at the discre 
tion of such court. 

IV. Courts of Inquiry. 

Art. 97. When and by Whom Ordered. — A court of inquiry to 
examine into the nature of any transaction of or accusation or im- 
putation against any officer or soldier may be ordered by the Presi- 
dent or by any commanding officer; but a court of inquiry shall not 
be ordered by any commanding officer except upon the request of the 
officer or soldier whose conduct is to be inquired into. 

Art. 98. Composition. — A court of inquiry shall consist of 
three or more officers. For each court of inquiry the authority 
appointing the court shall appoint a recorder.^ 

Art. 99. Challenges. — Members of a court of inquiry may be 
challenged by the party whose conduct is to be inquired into, but 
only for cause stated to the court. The court shall determine the 
relevancy and vaUdity of any challenge and shall not receive a chal- 
lenge to more than one member at a time. The party whose conduct 
is being inquired into shall have the right to be represented before 
the court by counsel of his own selection, if such counsel be reason- 
ably available. 

Art. 100. Oath of Members and Recorder. — The recorder of a 
court of inquiry shall administer to the members the following oath: 
''You, A. B., do swear (or affirm) that you will well and truly ex- 
amine and inquire, according to the evidence, into the matter now 
before you, Without partiality, favor, affection, prejudice, or hope 



130 Digest of Davis Military Law of the U.S. 

of reward. So help you God." After which the president of the 
court shall administer to the recorder the following oath: ''You, 
A. B., do swear (or affirm) that you will, according to your best 
abilities, accurately and impartially record the proceedings of the 
court and the evidence to be given in the case in hearing. So help 
you God." 

In case of affirmation the closing sentence of adjuration will 
be omitted, 

Art. 101. Powers; Procedure. — A court of inquiry and the 
recorder thereof shall have the same power to summon and examine 
witnesses as is given to courts-martial and the judge-advocate 
thereof. Such witnesses shall take the same oath or affirmation 
that is taken by witnesses before courts-martial. A reporter or an 
nterpreter for a court of inquiry shall, before entering upon his du- 
ties, take the oath or affirmation required of a reporter or an inter- 
preter for a court-martial. The party whose conduct is being in- 
quired into, or his counsel, if any, shall be permitted to examine and 
cross-examine witnesses so as fully to investiagte the circumstances 
in question. 

Art. 102. Opinion on Merits of Case. — A court of inquiry 
shall not give an opinion on the merits of the case inquired into 
unless specially ordered to do so. 

Art. 103. Record of Proceedings — How Authenticated. — 
Each court of inquiry shall keep a record of its proceedings, which 
shall be authenticated by the signature of the president and the re- 
corder thereof, and he forwarded to the convening authority. In 
case the record cannot be authenticated by the recorder, by reason 
of his death, disability, or absence, it shall be signed by the president 
and by one other member of the court. 

V. Miscellaneous Provisions. 

Art. 104. Disciplinary Powers of Commanding Officers. — 
Under s\ich regulations as the President may prescribe, and which 
he may from time to time revoke, alter, or add to, the commanding 
officer of any detachment, company, or higher command may, for 
minor offenses not denied by the accused, impose disciplinary pun- 
ishments upon persons of his command without the intervention of 
a court-martial, unless the accused demands trial by court-martial. 

The disciplinary punishments authorized by this article may 



and the Manual for Courts-Martial 131 

include admonition, reprimand, withholding of privileges, extra 
fatigue, and restriction to certain specified limits, but shall not in- 
clude forfeiture of ^ay or confinement under guard. A person pun- 
ished under authority of this article who deems his punishment 
unjust or disproportionate to the offense may, through the proper 
chajnnel, appeal to the next superior authority, but may in the mean- 
time be required to undergo the punishment adjudged. The com- 
manding officer who imposes the punishment, his successor in com- 
mand, and superior authority shall have power to mitigate or remit 
any unexecuted portion of the punishment. The imposition and 
enforcement of discipUnary punishment under authority of this 
article for any act or omission shall not be a bar to trial by court- 
martial for a crime or offense growing out of the same act or omis- 
sion; but the fact that a disciplinary punishment has been enforced 
may be shown by the accused upon trial, and when so shown shall 
be considered in determining the measure of punishment to be 
adjudged in the event of a finding of guilty. 

Art. 105. Injuries to Person or Property — Redress of. — 
Whenever complaint is made to any commanding officer that damage 
has been done to the property of any person or that his property 
has been wrongfully taken by persons subject to military law, such 
complaint shall be investigated by a board consisting of any number 
of officers from one to three", which board shall be convened by the 
conimanding officer and shall have, for the purpose of such investi- 
gation, power to summon witnesses and examine them upon oath 
or affirmation, to receive depositions or other documentary evidence, 
and to assess the damages sustained against the responsible par- 
ties. T\^ assessment of damages made by such board shall bejsub- 
ject to the approval of the commanding officer, and in the amount 
approved by him shall be stopped against the pay of the offenders. 
And the order of such commanding officer directing stoppages 
herein authorized shall be conclusive on any disbursing officer for 
the payment by him to the injured parties of the stoppages so 
ordered. 

Where the offenders cannot be ascertained, but the organiza- 
tion or detachment to which they belong is known, stoppages to the 
amount of damages inflicted may be made and assessed in such pro- 
portion as may be deemed just upon the individual members thereof 
who are shown to have been present with such organization or de- 



132 Digest of Davis' Military Law of the U. S. 

tachment at the time the damages complained of were inflicted as 
determined by the approved findings of the board. 

Art. 106. Arrest of Deserters by Civil Officials.— It shall be 
lawful for any civil officer having authority under the laws of the 
United States, or any State, Territory, District, or possession of 
the United States, to arrest offenders, summarily to arrest a deserter 
from the military service of the United States and deliver him into 
the custody of the military authorities of the United States. 

Art. 107. Soldiers to Make Good Time Lost. — Every soldier 
who in an existing or subsequent enlistment deserts the service of 
the United States, or without proper authority absents himself from 
his organization, stacion, or duty for more than one day, or who is 
confined for more than one day under sentence, or while awaiting 
triat and disposition of his case, if the trial results in conviction, or 
through intemperate use of drugs or alcoholic liquor, or through 
disease or injury the result of his own misconduct, renders himself 
unable for more than one day to perform duty, shall be liable to 
serve, after his return to a full-duty status, for such period as shall, 
with the time he may have served prior to such desertion, unau- 
thorized absence, confinement, or inability to perform duty, amount 
to the full term of that part of his enlistment period which he is re- 
quired to serve with his organization before being furloughed to the 
Army reserve. 

Art. 108. Soldiers — Separation from the Service. — No en- 
listed man, lawfully inducted into the military service of the United 
States, shall be discharged from said service without a certificate 
of discharge, signed b}^ a field officer of the regiment or other organi- 
zation to which the enhsted man belongs, or by the con^panding 
officer when no such field officer is present; and no enlisted man 
shall be discharged from said service before his term of service has 
expired, except by order of the President, the Secretary of War, the 
commanding officer of a department, or by sentence of a general 
court-martial. 

Art. 109. Oath of Enlistment. — At the tim.e of his enhstment 

every soldier shall take the following oalh or affirmation : ''I, , 

do solemly swear (or affirm) that I will bear true faith and allegiance 
to the United States of America; that I will serve them honestly and 
faithfully against all their enemies whomsoever; and that I will 
obey the orders of the President of the United States and the orders 



and the Manual for Courts-Martial 133 

of the officers appointed over me, according to the Rules and Articles 
of War." This path or affirmation may be taken before any officer. 

Art. 110. Certain Articles to Be Read and Explained. — Ar- 
ticles 1, 2, and 29, 54 to 96, inclusive, and 104 to 109, inclusive, shall 
be read and explained once every six months to the soldiers of every 
garrison, regiment, or company in the service of the United States. 

Art. 111. Copy of Record of Trial. — Every person tried by a 
general court-martial shall, on demand therefor, made by himself 
or by any person in his behalf, be entitled to a copy of the record of 
that trial. 

Art. 112. Effects of Deceased Persons — Disposition of. — In 
case of the death of any person subject to military law, the com- 
manding officer of the place or command will permit the legal repre- 
sentative or widow of the deceased, if present, to take possession 
of all his effects then in camp or quarters, and if no legal representa- 
tive or widow be present, the commanding officer shall direct a sum- 
mary court to secure all such effects; and said summary court shall 
have authority to convert such effects into cash, by public or private 
sale, not earlier than thirty days after the death of the deceased, and 
to collect and receive any debts due decedent's estate by local 
debtors; and as soon as practicable after converting such effects into 
cash said summary court shall deposit with the proper officer to be 
designated in regulations, any cash belonging to decedent's estate, 
and shall transmit a receipt for such deposit, accompanied by any 
will or other papers of value belonging to the deceased, an inventory 
of the effects secured by said summary court, and a full account of 
his transactions to the War Department for transmission to the Aud- 
itor for the War Department for action as authorized by law in the 
settlement of the accounts of deceased officers or enlisted men of the 
Army; but if in the meantime the legal representative or widow 
shall present himself or herself to take possession of decedent's estate, 
the said summary court shall turn over to him or her all effects not 
sold and cash belonging to said estate, together with an inventory 
and account, and make to the War Department a full report of 
his transactions. 

The provisions of this article shall be applicable to inmates of 
the United States Soldiers' Home who die in any United States 
military hospital outside of the District of Columbia where sent 
from the Home for treatment. 



134 Digest of Davis' Military Law of the U. S. 

ART./113. Inquests. — When at any post, fort, camp, or other 
place garrisoned by the mihtary forces of the United States and 
under the exclusive jurisdiction of the United States, any person 
shall have been found dead under circumstances which appear to 
require investigation, the commanding officer will designate and 
direct a summary court-martial to investigate the circumstances 
attending the death; and for this purpose such summary court- 
martial shall have power to summon witnesses and examine them 
upon oath or affirmation. He shall promptly transmit to the post 
or other commander a report of his investigation and of his findings 
as to the cause of the death. 

Art. 114. Authority to Administer Oaths. — Any judge- 
advocate or acting jud ^-advocate, the president of a general or 
special court-martial, any summary court-martial, the judge- 
advocate or any assistant judge-advocate of a general or special 
court-martial, the president or the recorder of a court of inquiry or 
of a military board, any officer designated to take a deposition, any 
officer detailed to conduct an investigation, and the adjutant of any 
command shall have power to administer oaths for the purposes of 
the administration of military justice and for other purposes of 
military administration; and in foreign places where the Army may 
be serving shall have the general powers of a notary public or of a 
consul of the United States in the administration of oaths, the exe- 
cution and acknowledgment of legal instruments, the attestation of 
documents, and all other forms of notarial acts to be executed by 
persons subject to mihtary law. 

Art. 115. Appointment of Reporters and Interpreters. — Under 
such regulations as the Secretary of War may from time to time 
prescribe, the president of a court-martial or military commission, 
or a court of inquiry shall have power to appoint a reporter, who 
shall record the proceedings of and testimony taken before such 
court or commission and may set down the same, in the first in- 
stance, in shorthand. Under like regulations, the president of a 
court-martial or military commission, or court of inquiry, or a 
summary court, may appoint an interpreter, who shall interpret for 
the court or commission. 

Art. 116. Powers of Assistant Judge - Advocates. — An as- 
sistant judge-advocate of a general court-martial shall be competent 
to perform any duty devolved by law, regulation, or the custom of 
the service upon the judge-advocate of the court. 



and the Manual for Courts-Martial 135 

Art. 117. Removal of Civil Suits. — When any civil suit or 
criminal prosecution is commenced in any court of a State against 
any officer, soldier, or other person in the mihtary service of the 
United States on account of any act done under color of his office 
or status, or in respect to which he claims any right, title, or au- 
thority under any law of the United States respecting the military 
forces thereof, or under the law of war, such suit or prosecution 
may at any time before the trial or final hearing thereof be removed 
for trial into the district court of the United States in the district 
where the same is pending in the manner prescribed in Section 33 
of the act entitled ''An act to codify, revise, and amend the laws 
relating to the judiciary," approved March 3, 1911, and the cause 
shall thereupon be entered on the docket of said district court and 
shall proceed therein as if the cause had been originally commenced 
in said district court and the same proceedings had been taken in 
such suit or prosecution in said district court as shall have been had 
therein in said State court prior to its removal, and said district 
court shall have full power to hear and determine said cause. 

Art. 1 18. Officers — Separation from Service. — No officer shall 
be discharged or dismissed from the service except by order of the 
President or by sentence of a general court-martial ; and in time of 
peace no officer shall be dismissed except in pursuance of the sen- 
tence of a court-martial or in mitigation thereof; but the President 
may at any time drop from the rolls of the Army any officer who 
has been absent from duty three months without leave or who has 
been absent in confinement in a prison or penitentiary for three 
months after final conviction by a court of competent jurisdiction. 

Art. 119. Rank and Precedence Among Regulars, Militia, and 
Volunteers. — That in time of war or public danger, when two or 
more officers of the same grade are on duty in the same field, depart- 
ment, or command, or of organizations thereof, the President may 
assign the command of the forces of such field, department, or com- 
mand, or of any organization thereof, without regard to seniority of 
rank in the same grade. In the absence of such assignment by the 
President, officers of the same grade shall rank and have precedence 
in the following order, without regard to date of rank or commission 
as between officers of different classes — namely : first, officers of the 
regular Army and officers of the Marine Corps detached for service 
with the Army by order of the President; second, officers of forces 



136 Digest of Davis' Military Law of the U. S. 

drafted or called into the service of the United States; and, third, 
officers of the volunteer forces: Provided, That officers of the reg- 
ular Army holding commissions in forces drafted or called into 
the service of the United States or in the volunteer forces shall 
rank and have precedence under said commissions as if they were 
commissions in the regular Army; the rank of officers of the regular 
Army under commissions in the National Guard as such shall not, 
for the purposes of this article, be held to antedate the acceptance 
of such officers into the service of the United States under the 
commissions. 

Art, 120. Command When Different Corps or Commands 
Happen to Join. — When different corps or commands of the military 
forces of the United States happen to join or do duty together, the 
officer highest in rank of the line of the regular Army, Marine Corps, 
forces drafted or called into the service of the United States, or 
volunteers, there on duty, shall, subject to the provisions of the last 
preceding article, command the whole and give orders for what is 
needful in the service, unless otherwise directed by the President. 

Art. 121. Complaints of Wrongs. — Any officer or soldier who 
believes nimself wronged by his commanding officer, and, upon due 
apphcation to such commander, is refused redress, may complain to 
the general commanding in the locality where the officer against 
whom tne complaint is made is stationed. The general shall ex- 
amine into said complaint and take proper measures for redressing 
the wrong complained of; and he shall, as soon as possible, transmit 
to the Department of War a true statement of sucxi complaint, with 
the proceedings had thereon. 

Sec 4. The provisions of Section 3 of tnis act shall taiie effect 
and be in force on and after March 1, 1917: Provided, That Articles 
4, 13, 14, 15, 29, 42, 47, 49, and 92 shall take effect immediately 
upon the approval of this act. 

Sec. 5. That all offenses committed and all penalties, forfeit- - 
ures, fines, or liabjhties incurred prior to the taking effect of this act, 
under any law embraced in or modified, changed, or repealed by 
tnis act, may be prosecuted, punished, ana enforced in the same 
manner and with the same effect as if this act had not been passed. 

Sec. 6. AH laws and parts of laws in so far as they are in- 
consistent with this act are hereby repealel. 

Approved August 29, 1916. 



audi the Manual for Courts-Martial 137 



INDEX TO THE ARTICLES OF WAR. 



Page 

I. PreIvIMinary Provisions 105 

Sec. 1342, Revised Statutes 105 

Art. I. Definitions 105 

Art. 2 . Persons subject to military law 105 

II . Courts-Martial 106 

Art. 3. Courts- martial classified 106 

(a) Composition 106 

Art. 4. Who may serve on courts- martial 106 

Art. 5 . General courts-martial 106 

Art. 6. Special courts-martial 107 

Art. 7 . Summary courts-martial 107 

ih) By whom appointed 107 

Art. 8. General courts-martial 107 

Art. 9. Special courts-martial 107 

Art. 10. Summary courts-martial 107 

Art. 1 1 . Appointment of judge-advocates 107 

(c) Jurisdiction 108 

Art. 1 2 , General courts-martial 108 

Art. 13. Special courts-martial 108 

Art. 14. Summary courts-martial 108 

Art. 15. Not exclusive 109 

Art. 16. Officers, how triable 109 

{d) Procedure 109 

Art. 1 7 . Judge-advocate to prosecute 109 

Art. 18. Challenges 109 

Art. 19. Oaths 109 

Art. 20. Continuances no 

Art. 21. Refusal to plead no 



138 Digest of Davis' Military Law of the U. S. 

II. Courts-Martial — Continued. 

(d) Procedure — Continued. Page 



Process to obtain witnesses 

Refusal to appear or testify 

Compulsory self-incrimination prohibited - 

Depositions — when admissible 

Depositions — before whom taken 

Courts of inquiry — records of — when admis- 
sible 

Resignation without acceptance does not re- 
lease officer 

BnUstment without discharge 

Closed sessions 

3 1 . Order of voting 

Contempts 

Records — general courts-martial 

Records — special and summary courts-martial. 
Disposition of records — special and summary 

courts-martial ,__ 

Irregularities — effect of 

President may prescribe rules 

{e) Limitations upon prosecutions 

Art. 39. As to time 

Art. 40. As to number 

(/) Punishments 

Art. 41 . Certain kinds prohibited 

Art. 42 . Places of confinement — when lawful 

Art. 43 . Death sentence — when lawful 

Art. 44. Cowardice; fraud; accessory penalty 

Art. 45 . Maximum limits ^ 

{g) A ction hy appointing or superior authority 

Art. 46. Approval and execution of sentence 

Art. 47. Powers incident to power to approve 

Art. 48. Confirmation — when required 

Art. 49. Powers incident to power to confirm 

Art. 50. Mitigation or remission of sentences 

Art. 51. Suspension of sentences of dismissal or death 



Art. 


22. 


Art. 


23. 


Art. 


24. 


Art. 


25. 


Art. 


26. 


Art. 


27. 


Art. 


28. 


Art. 


29. 


Art. 


30. 


Art. 


31. 


Art. 


32. 


Art. 


33. 


Art. 


34- 


Art. 


36. 


Art. 


37. 


Art. 


38. 



and the Manual for Courts-Martial 139 

JI. Courts-Martial — Continued. Page 

(g) Action by appointing or superior authority — Continued. 

Art. 52. Suspension of sentence of dishonorable dis- 
charge 118 

Art. 53. Suspension of sentences of forfeiture or con- 
finement 118 

III. Punitive Articles 118 

(a) Enlistment; muster; returns 118 

Art. 54. Fraudulent enlistment 118 

Art. 55. Officer making unlawful enlistment 119 

Art. 56. Muster rolls — false muster 119 

Art. 57. False returns — omission to render returns 119 

(b) Desertion; absence without leave 120 

Art. 58. Desertion 120 

Art. 59. Advising or aiding another to desert 120 

Art. 60. Entertaining a deserter 120 

Art. 6r. Absence without leave 120 

(c) Disrespect; insubordination; mutiny 120 

Art. 62. Disrespect toward the President, Vice-Presi- 
dent, Congress, Secretary of War, governors, 

legislatures ^_i2o 

Art. 63. Disrespect toward superior officers 121 

Art. 64. Assaulting or willfully disobeying superior of- 
ficer 121 

Art. 65. Insubordinate conduct toward noncommis- 
sioned officer 121 

Art. 66. Mutiny or sedition 121 

Art. 67. Failure to suppress mutiny or sedition 121 

Art. 68. Quarrels; frays; disorders 121 

(d) A rrest, confinement 122 

Art. 69. Arrest or confinement of accused persons 122 

Art. 70. Investigation of and action upon charges 122 

Art. 71. Refusal to receive and keep prisoners 123 

Art. 72. Report of prisoners received 123 

Art. 73. Releasing prisoner without proper authority __ 123 
Art. 74. Delivery of offenders to civil authorities 123 



140 Digest of Davis' Military Law of the U. S. 

III. Punitive Articles — Continued. Page 
(e) War offenses 124 

Art. 75 . Misbehavior before the enemy 124 

Art. 76. Subordinates compelling commander to sur- 
render 124 

Art. 77. Improper use of countersign 124 

Art. 78. Forcing a safeguard 124 

Art. 79. Captured property to be secured for public 

service 124 

Art. 80. Dealing in captured or abandoned property- _ 125 
Art. 81. Relieving, corresponding with, or aichng the 

enemy___. 125 

Art. 82. Spies 125 

(/) Miscellaneous crimes and offenses 125 

Art. 83. Military property— willful or negligent loss, 

damage, or wrongful disposition of 125 

Art. 84. Waste or unlawful disposition of military 

property issued to soldiers 125 

Art. 85. Drunk on duty 125 

Art. 86. Misbehavior of sentinel 126 

Art. 87. Personal interest in sale of provisions 126 

Art. 88. Intimidation of persons bringing provisions.. 126 
Art, 89. Good order to be maintained and wrongs re- 
dressed 126 

Art. 90. Provoking speeches or gestures 126 

Art. 91. Dueling 127 

Art. 92. Murder — rape 127 

Art. 93. Various crimes 127 

Art. 94. Frauds against the Government 127 

Art. 95. Conduct unbecoming an officer and gentle- 
man 1 29 

Art. 96. General article 129 

IV. Courts of Inquiry 129 

Art. 97. When and by whom ordered 129 

Art. 98. Composition 129 

Art. 99. Challenges 129 

Art. iQO. Oath of members and recorder__^_^_^__^ 129 



and the Manual for Courts-Martial 141 

IV. Courts o^ Inquiry — Continued. Page 

Art. loi. Powers; procedure ^ 130 

Art. 102. Opinion on merits of case 130 

Art. 103. Record of proceedings — how authenticated. _ 130 

V. M1SCE1.LANEOUS Provisions 130 

Art. 104. DiscipHnary powers of commanding officers_i30 

Art. 105. Injuries to person or property — redress of 131 

Art. 106. Arrest of deserters by civil officials 132 

Art. 107. Soldiers to make good time lost 132 

Art. 1 08. Soldiers — separation from the service, 132 

Art. 109. Oath of enlistment 132 

Art. no. Certain articles to be read and explained 133 

Art. III. Copy of record of trial 133 

Art. 112. Effects of deceased persons — disposition of __ 133 

Art. 113. Inquests 134 

Art. 114. Authority to administer oaths 134 

Art. 115. Appointment of reporters and interpreters.- .134 

Art. 116. Powers of assistant judge-advocates 134 

Art. 117. Removal of civil suits 135 

Art. 118. Officers — sej)aration from service 135 

Art. 119. Rank and precedence among Regulars, Mili- 
tia, and Volunteers 135 

Art. 120. Command when different corps or commands 

happen to join 136 

Art. 121. Complaints of wrongs 136 



Table Showing -Numbers of Corresponding Articles. 

OLD AND NEW CODES. 



Old 
num- 
ber. 

I 

2 

3 
4 
5 
6 

7 
8 

9 

lO 

1 1 

12 

13 
14 
15 
i6 

17 
i8 

19 

20 
21 
22 

23 
24 

25 
26 

27 
28 

29 

30 
31 



New 
num- 
ber. 



109, no 

54 
108 
56 
56 
57 
57 
II 



56 
56 
56 

83 
84 
84 
87 
62 

63 

64 

66 

67 

68 

90 

91 

91 

91 

121 

121 

-61 



Old 


New 


Old 


num- 


num- 


num- 


ber. 


ber. 


ber. 


32 


61 


63 


33 


61 


64 


34 


61 


65 


35 


61 


66 


36 




67 


37 




68 


38 


85 


69 


39 


86 


70 


40 


61 


71 


41 


75 


*72 


42 


75 


*73 


43 


76 


74 


44 


77 


*75 


45 


81 


76 


46 


81 


77 


47 


58 


78 


48 


107 


79 


49 


28 


*8i 


50 


29, 60 


*82 


51 


59 


*83 


52 




84 


53 




85 


54 


89, 105 


86 


55 


89, 105 


87 


56 


88 


88 


57 


. 83 


89 


58 


92,93 


90 


59 


74 


91 


60 


2, 94 


92 


61 


95 


93 


62 


93, 96 


95 



New 


Old 


num- 


num- 


ber. 


ber. 
96 


2 


2 


97 


69 


98 


69 


99 


71 


100 


72 


lOI 


73 


102 


70 


103 


70 


104 


8 


105 


8 


106 


II 


107 


5 


108 




109 


4 


III 


4 


112 


16 


113 


6,9, 13, 14 


114 


6,9, 13, 14 


115 


13, 14 


116 


19 


117 


19 


118 


32 


119 




120 
121 


18 


21 


122 


17 


124 


25 


125 


19 


126 


20, 70 


127 


32 


128 



*01d articles 72, 73, 75, 81, 82, and 
of March 2, 1913 (Public — No. 401, pp. 
I, 1913- 



83 were replaced by the a< 
21 and 22), efTective Ju; 



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