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sel when necessary: Provided, however, That no officer who has acted as member, trial judge advocate, assistant trial judge advocate, defense counsel, or assistant defense counsel in any case shall subsequently act as staff judge advocate to the reviewing or confirming authority upon the same case.
Article 11, Code of 1916, read as follows:
“ ART. 11. APPOINTMENT OF JUDGE ADVOCATES.-For each general or special court-martial the authority appointing the court shall appoint a judge advocate and for each geueral court-martial one or more assistant judge advocates wben necessary."
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: Provided further, That the officer competent to appoint a general court-martial for the trial of any particular case may, when in his judgment the interest of the service shall so require, cause any case to be tried by a special court-martial notwithstanding the limitations upon the jurisdic. tion of the special court-martial as to offenses set out in article 13; but the limitations upon jurisdiction as to persons and upon punishing power set out in said article shall be observed.
The second proviso is new.
On Jan. 22, 1919, shortly after the armistice in the World War, the War Department Issued instructions that “in view of the cessation of hostilities and the reestablishment of conditions approximating those of peace within the territorial limits of the United States, the propriety of observing limitations upon the punishing powers of courtsmartial as established by Executive order of Dec. 15, 1916, is obvious," and directed that trial by general court-martial within the territorial limits of the United States should be restricted to cases where adequate punishment could not be imposed by a special or summary court or under art. 104, post. The provisions of this telegram were merely directory, however, and concerned only the punishment to be inflicted, and until the enactment of the above article, containing this new proviso, an offense which was capital only in time of war (e. g., arts. 58, 59, 86) had to be tried by general courtmartial so long as a technical state of war existed. This made necessary the trial by general court-martial of many minor offenses which would otherwise have been tried by special or summary court. The reason for now permitting such cases to be sent to
court, but not to a summary court, is probably found in the greatly reduced punishing power of the summary court, under the new articles. See art. 14, post.
Notes of Decisions.
See notes under arts. 3 and 5, ante.
Power to adjudge forfeiture. --The monthly compulsory allotment of
рау under the act of Oct. 6, 1917, as amended, ante 1723, voluntary allotments under Class B of that act, 1739, ante, Liberty Loan allotments made during the World
War under 1720, ante, and premiums on war risk insurance, are not affected by sentences of courts-martial imposing a forfeiture of pay.
(1918) 24 Comp. Dec. 621. " Military law " defined.-U. S. v. McDonald (D. C. 1920), 265 Fed. 754.
Art. 13. Special courts-martial.--Special courts-martial shall have power to try any person subject to military law for any crime or offense not capital made punishable by these articles: Provided, That the President may, by regulations, 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 confinement In excess of six months, nor to adjudge forfeiture of more than two-thirds pay per month for a period of not exceeding six months.
Art. 13, Code of 1916, read as follows:
“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 capita. 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 courtsmartial any class or classes of persons subject to military law.
Special courts-martial shall not have power to adjudge dishonorable discharge, ses confinement in excess of six months, nor to adjudge forfeiture of more than six months pay.”
See notes under arts. 3, 5, and 12, ante.
Art. 14. Summary courts-martial.-Summary courts-martial shall have porter to try any person subject to military law, except an officer, a member of the Army Nurse Corps, a warrant officer, an Army field clerk, a field clerk Quartermaster Corps, a cadet, or a soldier holding the privileges of a certificate of eligi. bility to promotion, for any crime or offense not capital made punishable by these articles : Provided, That noncommissioned officers shall not, if they object thereto, be brought to trial before a summary court-martial without the authority of the officer competent to bring them to trial before a general courtmartial: Provided further, That the President may, by regulations, 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 confinement in ei. cess of one month, restriction to limits for more than three months, or forfeiture or detention of more than two-thirds of one month's pay.
The following portion of the first paragraph is new : a member of the Army Sorse Corps, a warrant officer, an Army field clerk, a field clerk Quartermaster Corps." The words, “which he may modify from time to time," which followed the word "reguls. tions,” in the second proviso of the first paragraph have been omitted. The second paragraph of art. 14, Code of 1916, read as follows:
"Summary courts-martial shall not have power to adjudge confinement in excess of three months, nor to adjudge the forfeiture of more than three months' pay: Prorided, That when the summary court officer is also the commanding officer no sentence of such summary court-martial adjudging confinement at hard labor or forfeiture of pay, or both. for a period in excess of one month shall be carried into execution until the same shall have been approved by superior authority."
See notes under arts. 3, 5, and 12, ante.
Art. 15. Jurisdiction not exclusive. The provisions of these articles confer. ring jurisdiction upon courts-martial shall not be construed as depriving milltary commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions, provost courts, or other milltary tribunals.
Same as art. 15, Code of 1916, except that the word "jurisdiction" is inserted in the title and the words “by statute or " the text; the word “lawfully," which appeared in the former article, preceding the word "triable," bas been omitted.
Notes of Decisions. Jurisdiction of civil courts.--A district act of Mar. 4, 1909 (35 Stat. 1115). court has jurisdiction to indict and try a although he was at the time an officer of person charged with having forged an obli- the Army, and the alleged offense was com gation of the United States with intent to mited at a military post, and with Intent defraud, which is made an offense against to defraud an enlisted soldier, wbere the the United States by R. S. 5414, cec, 148, accused has since been discharged from tbe
Army without any action against him hav. ing been taken by the military authorities; there being no provision, either constitutional or statutory, conferring exclusive jurisdiction on courts-martial to punish such offense. Neall
United States (1902), 118 Fed. 699, 56 C. C. A, 31.
This article does not impliedly deprive civil courts
concurrent jurisdiction. U. S. v. Hirsch (D. C. 1918), 254 Fed. 109; People v. Denman (Calif. 1918), 177 Pac. 461.
Jurisdiction of military commission.-A person committing an offense in a place where the Federal courts are closed by civil war, and arrested and tried in a place where the Federal courts are open, can not be tried by military commission. In re Mur phy (C. C. 1867), Fed. Cas. No. 9,947. Nor can a person be tried by a miltary commission for a murder committed in a rebel country five months after hostilities bave
terminated and the rebel army has surrendered. In re Egan (C. C. 1866), Fed. Cas. No. 4,303.
The crime of murdering the President of the United States in time of civil war is triable by a military commission. Ex parte Mudd (D. C. 1868), Fed. Cas. No. 9,899.
Jurisdiction of provost courts.- Provost courts are military courts having a wellknown jurisdiction, which is limited exclusively to minor offenses, tending to disorder and breaches of the peace, by soldiers and citizens within the lines of an army, and occupy with reference to such offenses a similar position with that of police courts in our cities. Field, J., dissenting, Mechanics', etc., Bank v. Union Bank (1874), 22 Wall. 276, 301.
For jurisdiction of a provost court of the militia not in Federal service, see United States v. Wolters (D. C. 1920), 268 Fed. 69.
Art. 16. Officers; how triable.-Officers shall be triable only by general and special courts-martial, and in no case shall an officer, when it can be avoided, be tried by officers inferior to him in rank.
Same as in Code of 1916, except that the words "and special
Notes of Decisions.
Discretion of commanding officer.-This provision is not prohibitory but directory only upon the convening authority. Its effect is to leave to the discretion of that officer, as the conclusive authority and judge, the determination of the rank of the members, with only the general in. struction that superiors in rank to the accused shall be selected, so far as the exigencies and interests of the service will permit. Mullan v. U. S. (1891), 140 U. S. 240.
Inferiority in rank or grade.- That one of the officers composing a court-martial is junior in rank and another inferior in grade
to the accused, does not of itself render either of them incompetent to sit. (1882) 17 Op. Atty. Gen. 397.
Whether the appointment on a general court-martial of officers inferior in rank to accused can be avoided is committed to the discretion of the appointing officer, who must be presumed to have acted in pursu. ance of law, and the sentence of a courte martial can not be collaterally attacked by going into an inquiry whether the trial by officers inferior in rank to the accused was avoidable, Swaim v. U. S. (1897), 17 Sup. Ct. 448, 450, 165 U. S. 553, 41 L. Ed. 823.
Art. 17. Trial judge advocate to prosecute; counsel to defend.—The trial judge advocate of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of its proceedings. The accused shall have the right to be represented in his defense before the court by counsel of his own selection, civil counsel if he so provides, or military if such counsel be reasonably available, otherwise by the defense counsel duly appointed for the court pursuant to article 11. Should the accused have counsel of his own selection, the defense counsel and assistant defense counsel, if any, of the court, shall, if the accused so desires, act as his associate counsel.
Article 17, Code of 1916, read as follows:
"ART. 17. JUDGE ADVOCATE TO PROSECUTE.—The judge advocate of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of its proceedings. The accused shall have the right to be represented before the court by counsel of bis own selection for bls de fense, if such counsel be reasonably available, but should he, for any reason, be unrep resented by counsel, the judge advocate shall from time to time throughout the pro. ceedings advise the accused of his legal rights."
Art. 18. Challenges.—Jsembers of a general or special court-martial may be challenged by the accused or the trial judge advocate for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time. Challenges by the trial judge advocate shall ordinarily be presented and decided before those by the accused are offered. Each side shall be entitled to one peremptory challenge; but the law member of the court shall not be challenged except for eause.
Art. 18, Code of 1916, read as follows:
"Art. 18. CHALLENGES.- Members of a general or special court-martial may be challenged by the accused, but only for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time."
Notes of Decisions.
Challenges.-The decision of a court-martial in determining the validity of a challenge to one of its members can not be reviewed in a collateral action, Swaim v. U S. (1897), 165 U. S. 531; 17 Sup. Ct. 448; 41 L. Ed. 823,
It is a matter within the jurisdiction of a court-martial to determine the compe tency of a member when challenged. In re Feinler (Sup. Ct., D. C., 1921), 49 Wash. L. R. 147.
Art. 19. Oaths.--The trial judge advocate of a general or special court-martial shall administer to the members of the court, before they proceed upon any trial, the following oath or affirmation : “You, A. B., do swear (or affirm) that you will well and truly try and determine, according to the evidence, the matter now before you, between the United States of America and the person to be tried, and that you will duly administer justice, without partiality, favor, or affection, according to the provisions of the rules and articles for the government of the armies of the United States, and if any doubt should arise, not explained by said articles, then according to your conscience, the best of your understanding, and the custom of war in like cases; and you do further swear (or affirm) that you will not divulge the findings or sentence of the court until they shall be published by the proper authority or duly announced by the court, except to the trial judge advocate and assistant trial judge advocate; neither will you disclose or discover the vote or opinion of any particular member of the court-martial upon a challenge or upon the findings or sentence, unless re. quired 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 trial judge advocate and to each assistant trial judge advocate, if any, an oath or affirmation in the following form : “You, A. B., do swear (or affirm) that you will faithfully and impartially perform the duties of a trial judge advocate, and will not divulge the findings or sentence of the court to any but the proper authority until they shall be duly disclosed. So help you God."
All persons who give evidence before a court-martial shall be examined on oath or affirmation in the following form: “You swear (or affirm) that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth. So help you God."
Every reporter of the proceedings of a court-martial shall, before entering upon his duties, make oath or affirmation in the following form : “You swear (or aflirm) that you will faithfully perform the duties of reporter to this court. So help you God."
Every interpreter in the trial of any case before a court-martial shall, before entering upon his duties, make oath or affirmation in the following form: “You swear (or affirm) that you will truly interpret in the case now in hearing. So help you God."
In case of affirmation the closing sentence of adjuration will be omitted.
Same as art. 19, Code of 1916, except that the word “trial” is inserted in each instance before the words “ judge advocate"; the words or duly announced by the court” and “upon a challenge or upon the findings or sentence" in the first paragraph are new; the words “ will faithfully and impartially perform the duties of a trial judge advocate, and” in the second paragraph are new; the concluding words of the first sentence of the former second paragraph were “shall be duly disclosed by the same," the last three words thereof being now omitted. These changes conform to the procedure under art. 29, post.
Notes of Decisions.
Oath of judge advocate.-The judge ad. void. (1838) 3 Op. Atty. Gen. 397 ; (1840) vocate of a court-martial is required to be Id. 544. shorn; and if the proceedings of the court In such cases the accused may be put do not show that he was sworn, it is to be upon another trial; but not before the same presumed that he was not, and the pro- cfficers who constituted the first court. ceedings may be regarded as irregular and (1838) 3 Op. Atty. Gen. 397.
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,
Same as in Code of 1916.
Art. 21. Refusal or failure to plead.—When an accused arraigned before a court-martial fails or refuses to plead, or answers foreign to the purpose, or after a plea of guilty makes a statement inconsistent with the plea, or when it appears to the court that he entered a plea of guilty improvidently or through lack of understanding of its meaning and effect, the court shall proceed to trial and judgment as if he had pleaded not guilty.
Art. 21, Code of 1916, read as follows:
“ ART. 21. REFUSAL TO PLEAD.--When the accused, arraigned before 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 trial judge advocate of a general or special court-martial and every summary court-martial shall have power to issue the like process to compel witnesses to appear and testify which courts of the United States, having criminal jurisdiction, may lawfully issue; but such process shall run to any part of the United States, its Territories, and possessions.
Same as art. 22, Code of 1916, except that the word "trial" is inserted before the words “judge advocate."
Sec. 25 of the sundry civil appropriation act of Mar. 3, 1863 (12 Stat. 754), first gave courts-martial this power. That section read as follows:
“That every judge advocate of a court-martial or court of inquiry hereafter to be constituted, shall have power to issue the like process to compel witnesses to appear and testify which courts of criminal jurisdiction within the State, Territory, or district where such military courts shall be ordered to sit may lawfully issue."
For power to issue process to secure the attendance and testimony of witnesses before courts-martial in the National Guard, not in the service of the United States, see sec. 108, act of June 3, 1916, ante 2562.