Art. 35. Disposition of records—General courts-martial.—The trial 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 acted upon, be transmitted to the Judge Advocate General of the Army. Same as art. 35, Code of 1916, except that the word "trial" is inserted before the words "judge advocate ", and the word “ finally ", which appeared in the former article, preceding the word " acted", has been omitted. Notes of Decisions. Matters constituting record. It is not sufficient to return the inferences or conclusions of courts-martial, nor mere statements of the evidence, or books or papers inspected; but the evidence itself on which they based judgment must be returned. And where the jurisdiction of the court was called into question on account of the early date of the enlistment, the record ought to have contained authentic evidence of the terms and period of the enlistment, that the revising officer might judge whether or not the court had jurisdiction. Op. Atty. Gen. 545. (1840) 3 Amendment of records.-The Secretary of War is without authority to correct, amend, or to take any action inconsistent with the record of a court-martial duly convened upon a proper and sufficient charge. This power is inherent in a court-martial; but such correction or amendment can be made only when the court-martial is in session, and when at least five of the members of the court who acted upon the trial are present, and then in the presence of the judge advocate. (1900), 23 Op. Atty. Gen. 23. Use as evidence.-An authenticated copy of a record of trial by Navy summary court-martial, which is required to be transmitted to, and kept on file in, the Navy Department, for a period of two years from date of trial, is admissible in a civil trial in a Federal court as an official document, under R. S. 882. Cohn v. U. S. (C. C. A. 1919), 258 Fed. 355. Art. 36. Disposition of records-Special and summary courts-martial.—After having been acted upon by the officer appointing 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 to be filed in the office of the judge advocate. When no longer of use, records of summary courts-martial may be destroyed. Same as in Code of 1916, except that the words " special and are omitted after the words"records of" in the last sentence. 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 authority, after an examination of the entire proceedings, it shall appear that the error complained of has injuriously affected the substantial rights of an accused: Provided, That the act or omission upon which the accused has been tried constitutes an offense denounced 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 confinement 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 authorized by the Executive order prescribing maximum punishments. Same as in Code of 1916. Art. 38.] MILITARY LAWS OF THE UNITED STATES. 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, which regulations shall, in so far as he shall deem practicable, apply the rules of evidence generally recognized in the trial of criminal cases in the district courts of the United States: 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. Same as in Code of 1916, except that the words between the words "military tribunals" and the first proviso are new. 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 military 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 arraignment of such person: Provided, That for desertion in time of peace or for any crime or offense punishable under articles ninetythree and ninety-four of this code the period of limitations upon trial and punishment by court-martial shall be three years: Provided further, That the period of any absence of the accused from the jurisdiction of the United States, and also any period during which by reason of some manifest impediment the accused shall not have been amenable to military justice, shall be excluded in computing the aforesaid periods of limitation: 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. Same as in Code of 1916. The joint resolution of Mar. 3, 1921, ante 2835, providing that certain statutes the operation of which is contingent upon the existence of a state of war should be construed as if the World War had ended on Mar. 3, 1921, was, by its terms, not to apply to the offense of desertion. See 2238, ante. Notes of Decisions. The Courts to which limitation is applicable.The limitation prescribed by this section does not apply to courts of inquiry. objects of a court of inquiry are not confined to investigation as preparatory to a court-martial, but extend to the legal procurement of information of any sort material to the military service or the discipline and government of the Army. (1853) 6 Op. Atty. Gen., 239. Desertion in time of peace. A soldier who deserted after the signing of the protocol between the United States and Spain, and while a state of peace actually existed, and nothing remained to be done to conclude peace, except the settlement of the details of the treaty, is within this section as amended; the limitation not to begin till the end of his term of enlistment. In re Cadwallader (C. C. 1904), 127 Fed. 881. The amendment to this section, relating to desertion in time of peace, does not fur- Suspension of limitations.-Where a prose- the case. (1854) 6 Op. Atty. Gen. 506. See, further, on this point (1842), 3 Op. Atty. Gen. 749. Absence or other manifest impediment.The word "absented." as used in the exception in the first sentence of this section (Code of 1874), means absence from the jurisdiction of the military courts. The words "other manifest impediment" mean only such impediments as operate to prevent the military court from exercising its jurisdiction. In re Davison (D. C. 1880), 4 Fed. 507. They do not mean merely want of evidence or ignorance as to the offender or offense by the military authorities, but import something akin to absence-want of power or a physical inability to bring the party charged to trial (1873) 14 Op. Atty. Gen. 266. The concealment of an of fense by the accused is not a "manifest impediment," and does not prevent the limitation from running in his favor. (1872) 14 Op. Atty. Gen. 52. The limitation begins to run from the commission of the offense, excepting in a case where, by reason of "manifest impediment," the accused is not amenable to justice within two years from that time. In such case it begins to run from the removal of the impediment. (1876) 15 Op. Atty. Gen. 152. The exception contained in the first sentence of this section (Code of 1874), which excepts from the limitation prescribed any person who, "by reason of having absented himself, or some other manifest impediment," shall not have been amenable to justice within the period prescribed, is not of any effect, where the limitation itself would not otherwise have run. (1878) 16 Op. Atty. Gen. 170; (1879) 16 Op. Atty. Gen. 396. Hence absence without leave during the term of enlistment, in the case of a deserter, is unimportant, inasmuch as, the offense of desertion being a continuing one during such term, the limitation would not otherwise begin to run until the expiration thereof. (1876) 15 Op. Atty. Gen. 152; (1878) 16 Op. Atty. Gen. 170; (1879) 16 Op. Atty. Gen. 396. Effect of expiration of term of service.— Under this section, a soldier may be arrested and tried, after the expiration of his term of service, for a military offense committed during such term. In re Bird (D. C. 1871), Fed. Cas. No. 1,428. Desertion is a continuing offense-an offense which may endure (1. e., be continually committed) from day to day after the period of its completion. But the continuing commission thereof is limited by the obligation to serve imposed upon the deserter by his engagement. When that obligation ceases to exist the commission of the offense necessarily terminates, and the limitation then begins to run in cases not excepted. So in case of desertion by an enlisted soldier (excepting where the of fender has previously surrendered himself or been apprehended, or where, by reason of manifest impediment, he is not amenable to justice) the limitation begins to run from the last day of the term for which he enlisted. (1876) 15 Op. Atty. Gen. 152; (1878) 16 Op. Atty. Gen. 170. Where the absence of the deserter continues after his term of service has expired, no presumption of law arises that he was not amenable to justice during such absence, and that his case is accordingly within the exception. The fact must be shown by evidence submitted at the trial. Nor is a plea of guilty, when it appears by the record that the order for trial was issued more than two years before the commission of the offense, to be taken as an admission by the accused of the existence of an exception withdrawing his case from the limitation. (1878) 16 Op. Atty. Gen. 170. Effect of dismissal from service. Where charges were preferred against an officer in the army for disobedience of orders in June, 1856, and in September following, for other reasons, he was dismissed from the service by the President, no courtmartial having been ordered to investigate the charge against him, it was held that, on his being restored to the army, he could not be tried on the charges pending against him at the time of his dismissal after the lapse of two years since the commission of the alleged offenses. (1858) 9 Op. Atty. Gen. 181. Waiver of limitation.-This limitation can not be waived by the accused, nor can he, even with his consent, be tried by a general court-martial ordered after the time prescribed. (1820) 1 Op. Atty. Gen. 383; (1853) 6 Op. Atty. Gen. 239. Determination of limitation.-The limitation prescribed in this section is a matter of defense in a trial for desertion, the tribunal having jurisdiction to try the charge is the one to determine whether the bar of the statute has attached, and civil courts have no authority to interfere in the matter. In re White (C. C. 1883), 17 Fed. 723; In re Davison (C. C. 1884), 21 Fed. 618, 619; In re Zimmerman (C. C. 1887), 30 Fed. 176, 177. It is for the prosecution to show, as a matter of fact, in some other way than by the form of the pleadings, that by reason of having absented himself, or of some other manifest impediment, the accused was not amenable to justice within the two years. (1878) 16 Op. Atty. Gen. 170. Art. 40. As to number.-No person shall, without his consent, be tried a second time for the same offense; but no proceeding in which an accused has been found guilty by a court-martial upon any charge or specification shall be held to be a trial in the sense of this article until the reviewing and, if there be one, the confirming authority shall have taken final action upon the case. No authority shall return a record of trial to any court-martial for reconsideration of (a) An acquittal; or (b) A finding of not guilty of any specification; or (c) A finding of not guilty of any charge, unless the record shows a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some article of war; or (d) The sentence originally imposed, with a view to increasing its severity, unless such sentence is less than the mandatory sentence fixed by law for the offense or offenses upon which a conviction has been had. And no court-martial, in any proceedings on revision, shall reconsider its finding or sentence in any particular in which a return of the record of trial for such reconsideration is hereinbefore prohibited. This article is almost entirely new. Art. 40, Code of 1916, read as follows: "ART. 40. AS TO NUMBER.-No person shall be tried a second time for the same offense." The provisions of this article respecting the return of records for reconsideration were embodied in General Orders No. 88, War Dept., dated July 14, 1919, effective August 10, 1919; and are by this article for the first time made statutory. Notes of Decisions. Construction of section in general. This section is borrowed from the common law, and is not held, either in civil or military tribunals, to preclude the accused from having a second trial on his own motion. It is error for a court-martial to refuse a second trial to the accused when the same has been ordered by the President. The plea of autrefois acquit, or convict, is the privilege of the accused, which he may use or waive at pleasure; if he does not choose to use it, courts will not take notice of it so as to bar a trial. (1818) 1 Op. Atty. Gen. 233. Proceedings included.-A defendant, tried by court-martial under A. W. 58, post, for desertion based on failure to file a questionnaire and fleeing to escape military duty, and acquitted, can not thereafter be tried by a Federal district court for failing to answer his questionnaire. U. S. v. Block (D. C. 1920), 262 Fed. 205. An officer, who was convicted of violation of A. W. 95, post, could not, in the same trial, on identical specifications and the same proof, be tried for violation of A. W. 96, post, since the court-martial, having sentenced him to dismissal under A. W. 95 (the sole penalty which may be adjudged under that article) was without power to try him for violation of A. W. 96, and sentence him to imprisonment thereunder. Ex parte Henkes (D. C. 1919), 267 Fed. 276; reversed (C. C. A. 1921), Fed. A plea before a court-martial of a former arrest and discharge is bad; a former trial only is a defense under this section. (1819) 1 Op. Atty. Gen. 294, The plea of autrefois acquit, averring a former trial and acquittal for manslaughter in the supreme court of a State upon the same evidence as must be used to sustain the charge of unofficerlike or ungentlemanlike conduct under the eightythird of the (former) articles of war, is not a bar to proceedings in a court-martial for the trial of an officer on such charge. (1842) 3 Op. Atty. Gen. 749; (1854) 6 Op. Atty. Gen. 413; (1854) 6 Op. Atty. Gen. 506. An acquittal by a general court-martial, established under act of March 2, 1863, for punishing offenses when committed by persons in the service of the United States, can not be pleaded in bar to an indictment for murder, under the laws of Tennessee. State v. Rankin (1867), 44 Tenn. (4 Cold.) 145; In re Fair (C. C. 1900), 100 Fed. 149. See, also, U. S. v. Cashiel (C. C. 1863), Fed. Cas. No. 14,744. See also notes under arts. 74 and 92, post. Separate offenses.-See Carter v. Me Claughry (1902), 22 Sup. Ct. 181, 189, 183 U. S. 365, 46 L. Ed. 236, affirming (C. C. 1900) 105 Fed. 614. F. PUNISHMENTS. Art. 41. Cruel and unusual punishments prohibited.-Cruel and unusual punishments of every kind, including flogging, branding, marking, or tattooing on the body, are prohibited. Art. 41, Code of 1916, read as follows: "ART. 41. CERTAIN KINDS PROHIBITED.-Punishment by flogging, or by branding, marking, or tattooing on the body is prohibited." Notes of Decisions. Flogging. See (1816) 1 Op. Atty. Gen. 187. Art. 42. Places of confinement-When lawful.-Except for desertion in time of war, repeated desertion in time of peace, and mutiny, 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 convicted is recognized as an offense of a civil nature and so punishable by penitentiary confinement for more than one year by some statute of the United States, of general application within the continental United States, excepting section 289, Penal Code of the United States, 1910, or by the law of the District of Columbia, or by way of commutation of a death sentence, and unless, also, the period of confinement authorized and adjudged by such court-martial is more than one year: Provided, That when a sentence of confinement is adjudged by a court-martial 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 confinement 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. The language between the words " offense of a civil nature" and the first proviso has been changed. Art. 42, Code of 1916, in that place read as follows: "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 authorized and adjudged by such court-martial is one year or more: " Authority is given by 532, ante, for the confinement of military prisoners convicted by courts-martial or other military tribunals, in United States, State, Territorial, or District penitentiaries, provided the offense for which any such prisoner is convicted shall be a crime under State or Federal law punishable by imprisonment in a penitentiary. All military offenders not so imprisoned shall be confined in the United States Disciplinary Barracks, formerly known as the military prison. |