Notes of

Power to compel attendance of witnesses in general. Prior to the enactment of the act of Mar. 3, 1863, above cited, there was no law authorizing a court-martial to compel the attendance of witnesses who were not in the military service. (1859) 9 Op. Atty. Gen. 311.

Construction of section in general.-The provisions of this section apply only to military courts. (1890) 19 Op. Atty. Gen. 501.

Decisions.

Process for witness. The process authorized by this section may be directed to the officers who by the practice of the service are ordinarily charged with the duty of performing the executive business of courtsmartial. (1868) 12 Op. Atty. Gen. 501.

In securing the testimony of a witness the court is restricted to the means which it is thus authorized to employ. It can not inflict any punishment where the power to impose it is not clearly conferred by Congress. (1885) 18 Op. Atty. Gen. 278.

Art. 23. Refusal to appear or testify.-Every person not subject to military law who, being duly subpoenaed to appear as a witness before any military court, commission, court of inquiry, or board, or before any officer, military or civil, designated to take a deposition to be read in evidence before such court, commission, court of inquiry, or board, willfully neglects or refuses to appear, or refuses to qualify as a witness, or to testify, or produce documentary evidence which such person may have been legally subpoenaed to produce, shall be deemed guilty of a misdemeanor, for which such person shall be punished on information in the district court of the United States or in a court of original criminal jurisdiction in any of the territorial possessions of the United States, jurisdiction being hereby conferred upon such courts for such purpose; and it shall be the duty of the United States district attorney or the officer prosecuting for the Government in any such court of original criminal jurisdiction, on the certification of the facts to him by the military court, commission, court of inquiry, or board, to file an information against and prosecute the person so offending, and the punishment of such person, on conviction, shall be a fine of not more than $500 or imprisonment not to exceed six months, or both, at the discretion of the court: Provided, That the fees of such witness and his mileage, at the rates allowed to witnesses attending the courts of the United States, shall be duly paid or tendered said witness, such amounts to be paid out of the appropriation for the compensation of witnesses: Provided further, That every person rot subject to military law, who before any court-martial, military tribunal, or military board, or in connection with, or in relation to any proceedings or investigation before it or had under any of the provisions of this act, is guilty of any of the acts made punishable as offenses against public justice by any provision of chapter 6 of the Act of March 4, 1909, entitled "An Act to codify, revise, and amend the penal laws of the United States" (volume 35, United States Statutes at Large, page 1088), or any amendment thereof, shall be punished as therein provided.

This article became effective on June 4, 1920. The second proviso is new. Payment of fees to witnesses is regularly included in provision for “ Pay and so forth of the Army" in acts making appropriations for the support of the Army.

Notes of Decisions.

Production of documentary evidence.Where a witness subpoenaed to produce certain documents before a military courtmartial testified that he had destroyed the documents before service of the subpoena, his failure to produce did not constitute a wilful refusal to produce such documents

within this section. U. S. v. Praeger (D. C. 1907), 149 Fed. 474.

Payment of fees.-This section requires that the legal fees of the witness shall be first duly paid or tendered in order to lay the foundation for a prosecution thereunder. A mere statement in the subpoena,

signed by the judge advocate of the courtmartial, to the effect that the United States tenders or guarantees the payment of the authorized fces, is not a sufficient compliance. (1901) 23 Op. Atty. Gen. 424.

Prosecution under this section. In a proceeding to punish a civilian for refusal to testify before a general military courtmartial, under this section, the parties may waive a jury by written stipulation. U. S. v. Praeger (D. C. 1907), 149 Fed. 474.

Art. 24. Compulsory self-incrimination prohibited. No witness before a military court, commission, court of inquiry, or board, or before any officer conducting an investigation, or before any officer, military or civil, designated to take a deposition to be read in evidence before a military court, commission, court of inquiry, or board, or before an officer conducting an investigation, shall be compelled to incriminate himself or to answer any question the answer to which may tend to incriminate him, or to answer any question not material to the issue when such answer might tend to degrade him.

Art. 24, Code of 1916, read as follows:

ART. 24. COMPULSORY SELF-INCRIMINATION PROHIBITED.-No witness before a military court, commission, court of inquiry, or board, or before any officer, military or civil, designated to take a deposition to be read in evidence before a military court, commission, court of inquiry, or board, shall be compelled to incriminate himself or to answer any questions which may tend to incriminate or degrade him."

Notes of Decisions.

Self-incriminating testimony. - Where a civilian, subpoenaed to appear before a court-martial, was advised by competent counsel that certain questions asked of him with reference to a publication concerning an army rifle contest, if answered, might subject him to a civil or criminal prosecution for libel, and for this reason he refused to answer on advice of counsel, and not from any evil intent, or with legal malice, his refusal would not constitute a violation of this section. And the decision of the court-martial that the questions asked were proper would not be conclusive on the civil courts of the question whether the witness was guilty of contempt in refusing to answer. U. S. v. Praeger (D. C. 1907), 149 Fed. 474.

Where at a trial by a court-martial a witness objected to answering a question on the ground of self-incrimination, but the court required him to answer, the judge advocate reading in support of this requirement R. S. 860 (repealed), that, if the

court committed an error in compelling the witness to answer the error was not such as to require a disapproval of the proceedings. (1883) 17 Op. Atty. Gen. 616.

Paper seized from accused.-The fact that private papers are unlawfully seized from a defendant does not render them incompetent to be used as evidence against him in a court-martial proceeding, even though he objected to such use at the time the papers were offered in evidence. (1899) 22 Op. Atty. Gen. 589. But see Gouled v. U. S. (1921), 254 U. S. -; 65 L. Ed. 311. Comparison of handwriting.-Evidence of handwriting, by comparison of hands, is inadmissible on a trial by court-martial, excepting where the writing, acknowledged to be genuine, is already in evidence in the case, or the disputed writing in an ancient document. The admission of such evidence is error, for which, if it was material to the finding of the court, the sentence of the latter should be set aside. (1882) 17 Op. Atty. Gen. 310.

Art. 25. Depositions-When admissible.-A duly authenticated deposition taken upon reasonable notice to the opposite party may be read in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or a military board, if such deposition be taken when the witness resides, is found, or is about to go beyond the State, Territory, or District in which the court, commission, or board is ordered to sit, or beyond the distance of 100 miles from the place of trial or hearing, or when it appears to the satisfaction of the court, commission, board, or appointing authority that the witness, by reason of age, sickness, bodily infirmity, 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 adduced for the defense in capital cases.

Same as in Code of 1916.

Notes of Decisions.

Depositions.-Depositions should not be admitted in courts-martial, except under certain restrictions, and in cases not capita'. Such courts should adhere to rules of evidence established in courts of common law jurisdiction. (1830), 2 Op. Atty. Gen. 344.

Witnesses who were not in the military service formerly could not be compelled to make depositions to be used in evidence be fore courts-martial on the trial of cass not capital. (1859), 9 Op. Atty. Gen. 311. See also notes under art. 22, ante.

Art. 26. Depositions-Before whom taken.-Depositions to be read in evidence before military courts, commissions, courts of inquiry, or military boards, er for other use in military administration, may be taken before and authenticated by any officer, military or civil, authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths.

Same as in Code of 1916.

Art. 27. Courts of inquiry-Records of, when admissible. The record of the proceedings of a court of inquiry may, with the consent of the accused, 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 adduced by the defense in capital cases or cases extending to the dismissal of an officer.

Same as in Code of 1916, except that the words "with the consent of the accused," in the second line, are new.

Art. 28. Certain acts to constitute desertion.-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.

Any soldier who, without having first received a regular discharge, again enlists in the Army, or in the militia when in the service of the United States, or in the Navy or Marine Corps of the United States, or in any foreign army, shall be deemed to have deserted the service of the United States; and, where the enlistment is in one of the forces of the United States mentioned above, to have fraudulently enlisted therein.

Any person subject to military law who quits his organization or place of duty with the intent to avoid hazardous duty or to shirk important service shall be deemed a deserter.

The first paragraph is the same as art. 28, Code of 1916, except that the former title of that article was "Resignation without acceptance does not release officer." The second paragraph is the same as art. 29, Code of 1916. The third paragraph is new.

Notes of Decisions.

Resignation.-By construction of this section its seems that an officer remains such, although he has resigned, until such time as he receives due notice of the acceptance of such resignation. So, where a resignation has been accepted, and the officer has received due notice thereof, a revocation by

the President of the order accepting such resignation will not work his restoration. Mimmack v. U. S. (1874), 10 Ct. Cl. 584. And see U. S. v. Corson (1885), 114 U. 8. 619, 621, 5 Sup. Ct. 1158, 29 L. Ed. 254; Bennett v. U. S. (1884), 19 Ct. Cl. 379 Palen v. Same, Id. 389.

Art. 29. Court to announce action.-Whenever the court has acquitted the accused upon all specifications and charges, the court shall at once announce such result in open court. Under such regulations as the President may prescribe, the findings and sentence in other cases may be similarly announced.

This article is new.

Art. 30. Closed sessions.-Whenever a general or special court-martial shall sit in closed session, the trial judge advocate and the assistant trial judge advocate, if any, shall withdraw; and when their assistance in referring to the recorded evidence is required, it shall be obtained in open court, and in the presence of the accused and of his counsel, if there be any.

Same as art. 30, Code of 1916, except that the word "trial" is inserted before the words "judge advocate" wherever they occur, and the words "their legal advice or" are omitted after the word " when."

Notes of Decisions.

Presence of judge advocate.-That a courtmartial trying a naval officer permitted the judge advocate to be present for a short time during a closed session of the court, in express violation of sec. 2, act of July 27, 1892 (27 Stat. 277), though a disregard of

the defendant's legal rights, was neverthe less an error in procedure only, and was therefore not ground for a writ of habeas corpus. Ex parte Tucker (D. C. 1913), 212 Fed. 569.

Art. 31. Method of voting.-Voting by members of a general or special courtmartial upon questions of challenge, on the findings, and on the sentence shall be by secret written ballot. The junior member of the court shall in each case count the votes, which count shall be checked by the president, who will forthwith announce the result of the ballot to the members of the court. The law member of the court, if any, or if there be no law member of the court, then the president, may rule in open court upon interlocutory questions, other than challenges, arising during the proceedings: Provided, That unless such ruling be made by the law member of the court if any member object thereto the court shall be cleared and closed and the question decided by a majority vote, viva voce, beginning with the junior in rank: And provided further, That if any such ruling be made by the law member of the court upon any interlocutory question other than an objection to the admissibility of evidence offered during the trial, and any member object to the ruling, the court shall likewise be cleared and closed and the question decided by a majority vote, viva voce, beginning with the junior in rank: Provided further, however, That the phrase, "objection to the admissibility of evidence offered during the trial," as used in the next preceding proviso hereof, shall not be construed to include questions as to the order of the introduction of witnesses or other evidence, nor of the recall of witnesses for further examination, nor as to whether expert witnesses shall be admitted or called upon any question, nor as to whether the court shall view the premises where an offense is alleged to have been committed, nor as to the competency of witnesses, as, for instance, of children, witnesses alleged to be mentally incompetent, and the like, nor as to the insanity of accused, or whether the existence of mental disease or mental derangement on the part of the accused has become an issue in the trial, or accused required to submit to physical examination, nor whether any argument or statement of counsel for the accused or of the trial judge advocate is improper, nor any ruling in a case involving military strategy or tactics or correct military action; but, upon all these questions arising on the trial, if any member object to any ruling of the

law member, the court shall be cleared and closed and the question decided by majority vote of the members in the manner aforesaid.

Art. 31, Code of 1916, read as follows:

"ART. 31. ORDER OF VOTING.-Members of a general or special court-martial, in giving their votes, shall begin with the junior in rank."

Art. 32. Contempts.-A military tribunal may punish as for contempt any per son who uses any menacing words, signs, or gestures in its presence, or who disturbs its proceedings by any riot or disorder: Provided, That such punishment shall in no case exceed one month's confinement, or a fine of $100, or both. Art. 32, Code of 1916, read as follows:

"ART. 32. CONTEMPTS.-A court-martial may punish at discretion, subject to the limi tations contained in article fourteen, any person who uses any menacing words, signs, or gestures in its presence, or who disturbs its proceedings by any riot or disorder." Notes of Decisions.

Refusal to testify.-A court-martial bas no final jurisdiction over a civilian subpœnaed to testify before it or power to punish him for contempt for refusing to testify. United States v. Praeger (D. C. 1907), 149 Fed. 474; (1885) 18 Op. Atty. Gen. 278.

Contempt.-Contempts, broadly considered, are of two kinds-direct and constructive. Contempts committed in the presence of the court, sitting judicially, or

SO near as to interfere with the orderly course of procedure, are direct contempts Contempts committed, not in presence of the court, but which tend, by their operation, to interrupt, obstruct, embarrass, er prevent the due and orderly administratios of justice, are constructive contempts. Indianapolis Water Co. v. The American Strawboard Co. (C. C. 1896), 75 Fed. Reg.

972.

Art. 33. Records-General courts-martial.-Each general court-martial shall keep a separate record of its proceedings in the trial of each case brought before it, and such record shall be authenticated by the signature of the president and the trial judge advocate; but in case the record can not be authenticated by the president and trial judge advocate, by reason of the death, disability, or absence of either or both of them, it shall be signed by a member in lieu of the president and by an assistant trial judge advocate, if there be one, in lieu of the trial judge advocate; otherwise by another member of the court.

is

Same as art. 33, Code of 1916, to the semicolon, except that the word " trial inserted before the words "judge advocate"; thereafter the former art. 33 reads as follows:

"but in case the record can not be authenticated by the judge advocate, by reason of his death, disability, or absence, it shall be signed by the president and an assistant judge advocate, if any; and if there be no assistant judge advocate, or in case of his death, disability, or absence, then by the president and one other member of the court.” Notes of Decisions.

Evidence outside record.-Evidence that the accused, at the time of his trial and conviction for a homicide before a general court-martial, had a military status, is admissible on habeas corpus where, except for the form of the charge, the courtmartial record failed to establish that the

accused belonged to the Army, but did establish on its face the power to convene the court-martial, so that the authority of that court to decide the particular subject before it was undoubted. Givens v. Zerbst (1921), 254 U. S. -; 65 L. Ed. 284.

Art. 34. Records-Special and summary courts-martial.-Each special courtmartial 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.

Same as in Code of 1916.