702; affirmed, sub. nom. Givens v. Zerbst (1921), 254 U. S.; 65 L. Ed. 284. Peace in the complete legal sense, officially proclaimed, is what is meant by the phrase "in time of peace" in this article. Id.; Kahn v. Anderson (1921), 254 U. S. 65 L. Ed. 288. Whether a condition of war exists, within this section, is within the exclusive jurisdiction of the political department of the Government. The "Boxer Uprising" held to constitute "a time of war." Hamilton v. McClaughry (C. C. 1905), 136 Fed. 445. This section held not applicable to Cuba after the treaty of peace with Spain, and further held that a private of the Second United States Artillery, who committed homicide in Cuba at such time, the victim being a teamster in the military service, should not be tried by court-martial nor by a military commission. (1900), 23 Op. Atty. Gen. 120. Where a soldier, while on duty in 1881 at a jail, maliciously attempted to kill a prisoner, and was by the authority of the United States confined there, and no application was made for the delivery of the soldier to the civil authorities, but he was tried by a general court-martial and sentenced to be imprisoned in the penitentiary for eight years and to be dishonorably discharged from the service, with forfeiture of his pay, it was held that the 58th and 59th articles, as then existing, had no application. Ex parte Mason (1881), 105 U. S. 696, 26 L. Ed. 1213. Civil authorities.-In time of war, on making demand for the delivery of the accused, the military authorities have jurisdiction, under this article, superior to that of the civil authorities to try a soldier who shot and killed a civilian (not on a military reservation). Query, whether or not, under such circumstances, the jurisdiction is not exclusive. Ex parte King (D. C. 1917), 246 Fed. 868, 873; but see U. S. v. Hirsch (D. C. 1918), 254 Fed. 109, and Caldwell v. Parker, post. But the State authorities may proceed to try and punish such an offender in the absence of an assertion of their jurisdiction by the military authorities. People v. Denman (Calif. 1918), 177 Pac. 461; Funk v. State (Tex. 1919), 208 S. W. 509; Stewart r. Commonwealth (Ky. 1919), 213 S. W. 185. The existence of a state of war does not so enlarge the military power as to make void the trial and conviction of a soldier serving in a camp, for a murder committed not within the confines of any camp or place subject to the civil or military authorities of the United States. Caldwell v. Parker (1920), 252 U. S. 376 (approving the Hirsch, Denman and Funk cases above cited, but expressly declining to pass on the question decided in Ex parte King, ante). A State court in Tennessee held to have no jurisdiction to try a person for murder alleged to have been committed on February 22, 1865, while accused was a soldier in the United States Army, such offense being triable by court-martial. Tennessee v. Hibdom (C. C. 1885), 28 Fed. 795. Where soldiers, in pursuance of orders, shot and killed a fleeing prisoner, after due warning to halt, some three miles from the military reservation from which he had escaped, held that they acted within the authority conferred on them under Federal law and should be discharged on habeas corpus from the custody of State authorities holding them under a charge of murder. In re Fair (1900), 100 Fed. 149; but see Drury v. Lewis (1906), 200 U. S. 1. Excusable homicide.-Where a sergeant of the guard shot a general prisoner to prevent his escape from the reservation, held that as there was an absence of malice and the sergeant acted in the performance of his supposed duty, the homicide was excusable. U. S. v. Clark (1887), 31 Fed. 710. Art. 93. Various crimes.-Any person subject to military law who commits manslaughter, mayhem, arson, burglary, housebreaking, robbery, larceny, embezzlement, perjury, forgery, sodomy, assault with intent to commit any felony, assault with intent to do bodily harm with a dangerous weapon, instrument, or other thing, or assault with intent to do bodily harm, shall be punished as a court-martial may direct. Same as art. 93, Code of 1916, except for the following additions: After the word "burglary" the word "housebreaking "; after the word "perjury" the words "forgery, sodomy"; after the word "felony" the words "assault with intent to do bodily harm with a dangerous weapon, instrument, or other thing ". For additional penalties prescribed by statute, see 1917, ante. Notes of Decisions. Former article.-Under former art. 58, authorizing a court-martial, in time of war, to punish the offenses of "assault and battery with intent to kill" and "wounding by shooting or stabbing with intent to commit murder," a court-martial held without jurisdiction to impose imprisonment on an accused on conviction of assaulting another by cutting him with a knife, without intent to kill, or for assaulting another by shooting at him with a pistol with intent to kill. Anderson v. Crawford (C. C. A. 1920), 265 Fed. 504. Art. 94. Frauds against the Government.-Any person subject to military law who makes or causes to be made any claim 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 the 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 to contain any false or fraudulent statements; 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, makes or procures, or advises the making of, any oath to any fact or to any writing or other paper knowing 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 procures, 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 counterfeited; 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 intended 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, equipments, ammunition, clothing, subsistence stores. money, or other property of the United States furnished or intended for the military service thereof; or Who knowingly purchases or receives in pledge for any obligation 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 imprisonment, or by such other punishment as a court-martial may adjudge, or by any or all of sil penalties. And if any person, being guilty of any of the offenses aforesaid while in the military service of the 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 te same extent as if he had not received such discharge nor been dismissed. Ard if any officer, being guilty, while in the military service of the United States, of embezzlement of ration savings, post exchange, company, or other like funds, or of embezzlement of money or other property intrusted to his char by an enlisted man or men, receives his discharge, or is dismissed, or is dropped from the rolls, 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 been so discharged, dismissed, or dropped from the rolls. Same as in Code of 1916, except that the last sentence is new. For additional penalties prescribed by statute, see 1917, ante. Notes of Decisions. See, also, notes to arts. 95 and 96, post. Forgery. A clerk in the employ of a paymaster of the United States Army is in the military service, and subject to trial by court-martial for forging vouchers in the disbursement of a reconstruction fund. In re Thomas (D. C. 1869), Fed. Cas, No. 13,888. Embezzlement.-The embezzlement by an Army officer of moneys appropriated for river and harbor improvements, with whose disbursement he is intrusted, in violation of R. S. 5488, now 250, ante, of this compilation, relating to the improper disposition of public money by any disbursing officer of the United States, is not the embezzlement of money furnished or intended for the military service, within the meaning of this section. Carter v. McClanghry (1902), 22 Sup. Ct. 181, 193, 183 U. S. 365, 46 L. Ed. 236, affirming Carter v. McClaughry (C. C. 1900), 105 Fed. 614, 619, in which case it was further held that the charge of embezzlement as defined in said R. S. 5488, ante, 280, was broader than that defined in either the first, fourth, or ninth paragraphs of this section. Misappropriation of money.-Under the grant of jurisdiction to a court-martial conferred by this section, such a court has no power to convict an officer of the Army for misappropriating money appropriated by Congress for the improvement of rivers and harbors. In re Carter (C. C. 1899), 97 Fed. 496, 499, appeal dismissed (1900), 20 Sup. Ct. 713, 177 U. S. 496, 44 L. Ed. 861. Contractors.-- This section, as originally enacted, included, among those enumerated as coming within its provisions, "any con tractor, agent, paymaster, quartermaster, or other person whatsoever in said forces or service." Construing said section, including the provision above quoted, it has been held that it was expressly limited to persons in the land or naval forces, or in the militia, in the actual service of the United States, and that it gave no power to try by eourtmartial a mere contractor to furnish supplies to the Government for the use of the military service. Ex parte Henderson (C C. 1878), Fed. Cas. No. 6,349. Evidence as to conspiracy.-Testimony tending to show such a relation or understanding between alleged conspirators as would be indicative of a purpose to defraud the Government by means of contracts for public works to be given out and carried on under charge of the accused would be admissible, even though it related to matters antedating the time of the particular conspiracy charged. (1899) 22 Op. Atty. Gen. 589. Punishment. A person sentenced by a court-martial to fine and imprisonment for presenting fraudulent claims to the United States may be punished by dismissal from the service for the same offense, as conduct unbecoming an officer. Carter 0. Me Claughry (1902), 22 Sup. Ct. 181, 190, 183 U. S. 365, 46 L. Ed. 236; Rose v. Roberts (1900), 99 Fed. 948, 40 C. C. A. 199. The mere fact that the same acts are specified in support of separate charges against an Army officer before a martial does not destroy the distinctive character of the offenses charged, or cousti court tute the splitting of a single offense into a number of distinct offenses, if different elements enter into each offense which must be proved to warrant a conviction. Carter v. McClaughry (C. C. 1900), 105 Fed. 614, order affirmed (1902), 22 Sup. Ct. 181, 183 U. S. 365, 46 L. Ed. 236. Twice in jeopardy.-A person is not twice put in jeopardy by a sentence of a courtmartial imposing both fine and imprisonment upon an officer convicted upon two charges of violating this section, one of which charges was a conspiracy to defraud the United States, and the other the causing of false and fraudulent claims to be made against the United States, even if the punishment prescribed by this section is confined to a fine or imprisonment in the alternative, as such charges are separate offenses, although growing out of one transaction. Carter v. McClaughry (1902), 22 Sup. Ct. 181, 189, 183 U. S. 365, 46 L. Ed. 236, affirming (C. C. 1900), 105 Fed. 614. Imprisonment.—The word "imprisonment," as used in this section, was not employed in a technical sense to signify imprisonment at a military post without hard labor, but has a broader signification, and empowers a court-martial to sentence a person in the military service to imprisonment at hard labor, or to a penitentiary where hard labor is a part of the discipline, where the offense of which he is convicted is one for which the civil tribunals could impose a like sentence. Langan (C. C. 1903), 123 Fed. 132. Fine and imprisonment.-Under this section a person convicted of two offenses named therein may be punished by fine as to one and by imprisonment as to the other. In re Rose v. Roberts (1900), 99 Fed. 948, 40 C. C. A. 199. And where a single sentence is pronounced on such conviction, imposing both fine and imprisonment, it will be presumed that the punishment was so distributed between the charges. Carter v. McClaughry (C. C. 1900), 105 Fed. 614; order affirmed (1902), 22 Sup. Ct. 181, 183 U. S. 365, 46 L. Ed. 236. Dismissal from service.-The fact that an Army officer sentenced by a court-martial to fine and imprisonment is by the same judgment dismissed from the service does not deprive the military authorities of jurisdiction to carry out the sentence. Rose v. Roberts (1900), 99 Fed. 948, 40 C. C. A. 199. Sentence in gross.-An indefinite number of offenses may be adjudicated together in one proceeding by a court-martial, and a single sentence rendered covering all the convictions. Rose v. Roberts (1900), 99 Fed. 948, 40 C. C. A. 199. And the validity of such a sentence is not affected by the setting aside of the conviction as to some of the charges, provided it is not greater than might have been imposed on the charges supporting which the findings are approved. Carter v. McClaughry (C. C. 1900), 105 Fed. 614; order affirmed (1902), 22 Sup. Ct. 181, 183 U. S. 365, 46 L. Ed. 236. Implied repeal. This article is not amended or repealed by act of Oct. 23, 1918, amending sec. 35, Criminal Code (40 Stat. 1015), nor does such act deprive courtsmartial of jurisdiction in respect to persons in the military or naval service. U. S. v. Barry (D. C. 1919), 260 Fed. 291. Art. 95. Conduct unbecoming an officer and gentleman.-Any officer or cadet who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service. Same as in Code of 1916. Notes of Decisions. Conduct unbecoming an officer and gentleman. The articles of war do not define the offense covered by this section. Nor can courts of law do $0. Swaim v. U. S. (1893), 28 Ct. Cl. 173. The undefined offenses covered by the term "conduct unbecoming an officer and gentleman" must be determined by a higher code than that of criminal law. Fletcher v. U. S. (1891), 26 Ct. Cl. 541. The same conduct, constituting an offense elsewhere provided for in the Articles of War, may also warrant a finding of guilty by a court-martial, under this section. In re Carter (C. C. 1899), 97 Fed. 496; appeal dismissed (1900), 20 Sup. Ct. 713, 177 U. S. 496, 44 L. Ed. 861. Conduct unbecoming an officer and a gentleman may consist in refusing to pay a debt. Fletcher v. U. S. (1891), 26 Ct. CI, 541. Untruthful statements made by a milltary officer to the official head of the War Department, with intent to deceive that officer, may be included in the term. (1885) 18 Op. Atty. Gen. 113, 119. Twice in jeopardy.-An officer convicted of violation of this article, for which the only penalty is dismissal, can not in the same trial, on identical specifications and the same proof, be adjudged guilty of A. W. 96, post, and sentenced to imprisonment as well as dismissed. The court, having tried, convicted, and sentenced him under A. W. 95, was without further power to try him under the general provisions of A. W. 96. Ex parte Henkes (D. C. 1919), 267 Fed. 276; reversed (C. C. A. 1921), Fed. Civil offense.-A conviction by a courtmartial of a commissioned officer of the National Guard of conduct unbecoming an officer and of conduct to the prejudice of good order and military discipline held not a bar to a subsequent indictment for grand larceny founded on the same transaction. People v. Wendel (1908), 112 N. Y. Supp. 301. Other offenses.-A court-martial may properly acquit an officer of the charge of conduct unbecoming an officer and a gentleman," yet at the same time convict him of the lesser offense of "conduct prejudia' to good order and military discipline." Swaim v. U. S. (1893), 28 Ct. Cl. 173. Findings. A court-martial has the right to substitute in its findings the words "conduct to the prejudice of good order and military discipline" for the words "conduct unbecoming an officer and a entleman," as contained in the charge. (1885) 18 Op. Atty. Gen. 113, 114. Art. 96. General article.-Though not mentioned in these articles, all disorders and neglects to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon the military service, and all crimes or offenses not capital, of which persons subject to military law may be guilty, shall be taken cognizance 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. Same as in Code of 1916. For additional penalties prescribed by statute see 1917, ante. Notes of Decisions. See, also, notes to arts. 94 and 95. Offenses included.-The articles of war do not define the offenses named in this section. Nor can courts of law do so. Swaim v. U. S. (1893), 28 Ct. Cl. 173. Embezzlement. It is peculiarly for an Army court-martial to determine whether the crime of embezzlement charged is "to the prejudice of good order and military discipline," within the meaning of this section. Carter v. McClaughry (1902), 22 Sup. Ct. 181, 193, 183, U. S. 365, 46 L. Ed. 236, affirming order (C. C. 1900) 105 Fed. 614. False statements.-False statements by an officer to the Secretary of War for the purpose of deceiving him are not so trivial in their nature as to be merely an offense against good order and military discipline, but are conduct unbecoming an officer and a gentleman. (1885) 18 Op. Atty. Gen. 113, 118. Homicide. A general court-martial has jurisdiction, under this section, as of a crime not capital, to try a soldier for homicide punishable, under Pen. Code P. I., art. 404, by imprisonment. Grafton . U. S. (1907), 27 Sup. Ct. 749, 750, 206 U. S. 333, 51 L. Ed. 1084, 11 Ann. Cas. 640. Misapplication of public moneys.-An Army officer who applies to a purpose not prescribed by law public moneys intrusted to him for river and harbor purposes, by causing them to be paid out by checks on false accounts, in violation of R. S. 5488 (embodied in ante, 280), relating to the improper disposition of public moneys by a disbursing officer of the United States, may be convicted by an Army court-martial of a violation of this section. Carter v. Me Claughry (1902), 22 Sup. Ct. 181, 193, 183 U. S. 365, 46 L. Ed. 236, affirming Carter c. McClaughry (C. C. 1900), 105 Fed. 614, 619. Lesser offenses. When it appears that an offense of which an officer was convicted is embraced in the one with which he was charged, it is a lesser offense of the same character, and the conviction is authorized by this article. Bankhead v. U. S. (1885), 20 Ct. Cl. 405. Jurisdiction of offenses within section.-The contention that under this article a court martial has exclusive jurisdiction over the crimes committed by a military officer which are cognizable by courts-martial under the provisions of this article is too clearly unfounded to serve as the basis of a writ of error from the supreme court to review a conviction in the circa't court. Franklin v. U. S. (1909), 30 Sup. Ct. 434, 436, 216 U. S. 559, 54 L. Ed. 615. Where an offense is specifically provided for in any of the articles of war prior to this one, the grant of jurisdiction to a court-martial to try and punish such of |