Page images
PDF
EPUB

Notes of Decisions.

Reading articles, etc.---The taking of the oath of allegiance is the pivotal fact which changes the status from that of a civilian to that of a soldier, and the fact that the Articles of War, many of which do not con

cern the duty of a soldier, are not read to a recruit before he took the oath, will not vitiate his enlistment. U. S. v. Grimley (1890), 11 Sup. CL 54, 56, 137 U. S. 147, 34 L. Ed. 636.

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 the trial.

Same as in Code of 1916.

Art. 112. Effects of deceased persons-Disposition of.-In case of the death of any person subject to military law the commanding officer of the place of command will permit the legal representative or widow of the deceased, if present, to take possession of all his effects then in camp or quarters; and if no legal representative or widow be present, the commanding officer shall direct a summary court to secure all such effects, and said summary court shall have authority to collect and receive any debts due decedent's estate by local debtors and to pay the undisputed local creditors of decedent in so far as any money belonging to the deceased which may come into said summary court's possession under this article will permit, taking receipts therefor for file with said court's final report upon its transactions to the War Department; and as soon as practicable after the collection of such effects said summary court shall transmit such effects and any money collected, through the Quartermaster Department, at Government expense, to the widow or legal representative of the deceased, if such be found by said court, or to the son, daughter, father, provided the father has not abandoned the support of his family, mother, brother, sister, or the next of kin in the order named, if such be found by said court, or the beneficiary named in the will of the deceased, if such be found by said court, and said court shall thereupon make to the War Department a full report of its transactions; but if there be none of the persons hereinabove named, or such persons or their addresses are not known to or readily ascertainable by said court, and the said court shall so find, said summary court shall have authority to convert into cash, by public or private sale, not earlier than thirty days after the death of the deceased, all effects of deceased except sabers, insignia, decorations, medals, watches, trinkets, manuscripts, and other articles valuable chiefly as keepsakes; and as soon as practicable after converting such effects into cash said summary court shall deposit with the proper officer, to be desisnated in regulations, any cash belonging to decedent's estate, and shall transmit a receipt for such deposits, any will or other papers of value belonging to the deceased, any sabers, insignia, decorations, nedals, watches, trinkets, manuscripts, and other articles valuable chiefly as keepsakes, together with an inventory of the effects secured by said summary court, and a full account of its transactions, to the War Department for transmission to the Auditor for the War Department for action as authorized by law in the settlement of accounts of deceased officers and enlisted men of the Army.

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.

Same as art. 112. Code of 1916, as amended by the acts of July 9, 1918 (40 Stat. 882) and Nov. 13, 1919 (41 Stat. 356), except that the matter following the words " debts due decedent's estate by local debtors ", down to and including the words

“ transactions to the War Department," is new. The phrase place of command" is evidently an unintentional change from the phrase "place or command," as the article originally read in the Code of 1916, “ Place of command " first appeared in the amend. ment of July 9, 1918.

Art. 113. Ivquests. When at any post, fort, camp, or other place garrisoned by the military 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 desig. nate 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.

Same as in Code of 1916.

Art. 114. Authority to administer oaths.--Any judge advocate or acting judge advocate, the president of a general or special court-martial, any summary court-martial, the trial judge advocate or any assistant trial 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 execution and acknowledgment of legal instruments, the attestation of documents, and all other forms of notarial acts to be executed by persons subject to military law.

Same as in Code of 1916, except that the word “trial", is inserted before the words “ judge advocate", twice in the third line.

See also ante, 97.

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 instance, in shorthand. Under like regulations the president of a court-martial or military coinmission, or court of inquiry, or a summary court, may appoint an interpreter, who shall interpret for the court or commission.

Same as in Code of 1916.

The rate of pay for reporters, other than enlisted men, is not prescribed by statute, but is set forth in the Manual for Courts-Martial; but for the statute regulating the rate of pay of enlisted men detailed as stenograpbic reporters, see 2195, ante.

Art. 116. Powers of assistant trial judge advocate and of assistant defense counsel.--An assistant trial 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 trial judge advocate of the court. An assistant defense counsel shall be competent likewise to perform any duty devolved by law, regulation, or the custom of the service upon counsel for the accused.

Same as art. 116, Code of 1916, except that the word “trial" is inserted before the words " judge advocate," and the last sentence is new.

Art. 117. Removal of civil suits.—When any civil or criminal prosecution is commenced in any court of a State against any officer, soldier, or other person in the military 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 authority 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.

Same as in Code of 1916.

Notes of Decisions.

See also notes to A. W. 74, ante.

Operation of article.--A Soldier who is charged with murder of a citizen of a State has no right to removal of the prosecution from the State court to a Federal court under this article where it is not contended that the act was done under color of his office or status. Funk v. State (Tex. 1919), 208 S. W. 509.

Nor ordinarily where his trial by the State court will not seriously interfere with the enforcement of the laws of the United States or the operation of its Government. Castle v. Lewis (C. C. A, 1918), 254 Fed. 917.

Under a petition alleging, in effect, that plaintiff was a member of a military organization hostile to the United States, the ob

ject of which was to ald rebels in arms in the Southern States to overthrow the Gos. ernment and that the defendants, as mebers of the State militia forces, had been directed to aid in arresting plaintiff, by the general commanding said militia forces in the State of Indiana upon whom a request for such aid had been made by the general commanding the military forces of the United States in said State, held tbat the petition entitled the defendants to have an action for assault and battery and false imprisonment based on these facts removed to the United States Circuit Court, under sec. 5 of the act of Mar. 3, 1863 (12 Stat. 756). McCormick v. Humphrey (1866), 27 Ind. 144.

Art. 118. 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 sentence of a general 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.

Same as in Code of 1916, except that the word " general" is inserted in the fourth line before the word “court-martial."

See also R. S. 1229, ante, 2446.

The President was authorized to drop from the rolls of the Army any officer abseat from duty three months without leave, etc., by another provision of said R. S. 1920, and by a provision of act of Jan. 19, 1911, ante, 2446.

Officers dismissed by sentence of a general court-martial formally approved can not be restored to the service except by reappointment. R. S. 1228, ante, 2448.

For right of an officer dismissed by the President to demand a trial, and effect of failure to convene a court-martial, see R. S. 1230, ante, 2447, and notes thereto.

Notes of Decisions.

Construction of section in general.- This section means that whereas, under act of July 17, 1862 (12 Stat. 596), as well as before its passage, the President alone was authorized to dismiss an Army or naval officer from the service for any cause which, in his judgment, either rendered such officer unsuitable for, or whose dismissal would promote, the public service, he alone sball not thereafter in time of peace exercise such power of dismissal, except in pursuance of a court-martial sentence to that effect, or in commutation thereof. It was not the purpose of the fifth section of the act of July 13, 1866 (embodied herein) to withdraw from the President the power, with the advice and consent of the Senate, to supersede an officer in the military or naval service by the appointment of another in his place. Blake 0. U. S. (1880), 103 U. S. 227, 236, 26 L, Ed. 462.

Purpose of article. --The purpose of the act was, in times of peace, to suspend the broad power which the President exercised during the war. McElrath v. U. S. (1880), 102 U. S. 426, 438, 26 L. Ed. 189.

It was not the purpose of this section to withdraw from the President the

power to supersede or remove an officer of the Army by the appointment, by and with the advice and consent of the Senate, of his successor. Blake v. U. S. (1880), 103 U. S. 227, 236, 26 L. Ed. 462.

The word commutation," used in sec. 2446, ante, is changed to “ mitigation in this article. Hartigan v. U. S. (1905), 25 Sup. Ct. 204, 205, 196 U. S. 169, 49 L. Ed. 434.

Dismissal in general-Officers.-A sentence of " dismissal" is legal. (1829) 2 Op. Atty. Gen. 287, 297; (1841) 3 Op. Atty. Gen. 631.

Effect of dismissal.-An officer in the Army, who was dismissed from the service, by order of the President, did not regain his position by a subsequent revocation of that order. A vacancy was created which could be filled only by a new appointment. U. S. v. Corson (1885), 114 U. S. 619; (1842) 4 Op. Atty. Gen. 123; (1868) 12 id. 421 ; McElrath v. U. S. (1876), 12 Ct. Cl. 201, in which the Court of Claims abandoned an earlier contrary view, expressed in a series of cases from Smith v. U. S. (1866), 2 Ct. Cl. 206, to Montgomery v. U. S. (1869), 5 id. 93. See 2448, ante.

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, department, or command, or of organizations thereof, the President may assign the command of the forces of such field, department, or command, or of any organization thereof, without regard to seniority of rank in the same grade,

Same as first sentence of art. 119, Code of 1916. The omitted portion read as follows:

“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 drafted or called into service of the United States ; and, third, officers of the volunteer forces : Provided, That officers of the Regular 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 said 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.

Same as in Code of 1916.

[ocr errors]

Notes of Decisions.

Officers of Marine Corps.-This section President detaching it for service with does not operate to give to officers of the the Army, the case is one of cooperation Marine Corps any authority to exercise and not of incorporation, and in such a command in the Army, unless they have case no officer of the Marine Corps ean es been detached for service with the Army by ercise command over the Army any more order of the President, and are still serving than a naval officer can when some part of with the Army under that order. When the Navy is cooperating with the Army: any part of the Marine Corps is present and the converse is true of Army oficers cowith the Army and engaged in a common operating with the Marine Corps. (1909) enterprise with it, without an order of the 28 Op. Atty. Gen. 15.

Art. 121. Complaints of wrongs.—Any officer or soldier who believes himself wronged by his commanding officer, and, upon due application to such commander, is refused redress, may complain to the general commanding in the locality where the officer against whom the complaint is made is stationed. The general shall examine 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 such complaint, with the pro ceedings had thereon.

Same as in Code of 1916.

« PreviousContinue »