1308-54 28 Apr. 1954 1.00€ 133730 COMPILATION OF COURT-MARTIAL ORDERS, 1916-1937 C. M. O. 1-1928 [P. 4] ACCUSED: STATEMENT OF. Lieutenant (Junior Grade) Frederick G. Merrill, Jr., Medical Corps, U. S. On January 5, 1928, the Judge Advocate General placed the following remarks on the record: "In reviewing the record of proceedings in the foregoing case of Lieutenant (j. g.) Frederick G. Merrill, Jr., Medical Corps, U. S. Navy, it is noted that the record fails to show that the accused did not desire to make a statement, as required by section 665, Naval Courts and Boards, 1923. As the accused was represented by counsel, this omission did not, in the opinion of this office, jeopardize the rights of the accused to such an extent as to invalidate the proceedings. "Subject to the above remarks, the proceedings, findings, and sentence in the within case are, in the opinion of this office, legal." On January 12, 1928, the Secretary of the Navy approved the proceedings, findings, and sentence. ACCUSED: STATEMENT OF. Chief Pay Clerk Clifford W. Waters, U. S. Navy, was tried by general court martial by order of the Secretary of the Navy at the Navy Yard, Norfolk, Va., on December 5, 1927, and was convicted of the following charge: "Violation of a lawful regulation issued by the Secretary of the Navy." The court sentenced the accused to lose five numbers in his grade and to lose $25 of his pay per month for a period of six months. On January 6, 1928, the Judge Advocate General placed the following remarks on the record: [P. 5] "In reviewing the record of proceedings in the foregoing case of Chief Pay Clerk Clifford W. Waters, U. S. Navy, it is noted that the record fails to show that the accused did not desire to make a statement, as required by section 665, Naval Courts and Boards, 1923. As the accused was represented by counsel, this omission did not, in the opinion of this office, jeopardize the rights of the accused to such an extent as to invalidate the proceedings. "Subject to the above remarks, the proceedings, findings, and sentence in the within case, are, in the opinion of this office, legal." On January 11, 1928, the Secretary of the Navy approved the proceedings. findings, and sentence, and the remarks of the Judge Advocate General. CLEMENCY: SENTENCE INADEQUATE. Lieutenant Commander Edward E. Woodland, Medical Corps, U. S. Navy, was tried by general court martial by order of the Secretary of the Navy at the Navy Yard, Norfolk, Va., on December 8, 1927, and was found guilty by plea of the following charges: 1127 [C. M. O. No. 1-1928] Charge I.-Violation of a lawful regulation issued by the Secretary of the Navy. Charge II.-Drunkenness. Charge III-Conduct to the prejudice of good order and discipline. On January 7, 1928, the Bureau of Navigation placed the following endorsement on the record: "The accused in this case has been found guilty of unlawful possession and use of alcoholic liquor on board and of being so much under its influence as to necessitate his being placed on the sick list. The Bureau notes with approval the manly way the accused has admitted the accusations against him and his superior professional record extending over many years which the court has made the basis for a unanimous recommendation for clemency. However, in awarding a loss of only fifteen numbers in grade for such serious offenses the court has itself exercised clemency. It is therefore recommended that the recommendation for clemency be not favorably considered, and that the proceedings, findings, and sentence be approved." [P. 6] On January 12, 1928, the Secretary of the Navy approved the proceedings, findings, and sentence and the remarks of the Chief of the Bureau of Navigation. DEPOSITIONS: USE OF IN COURTS MARTIAL. Lieutenant James P. Jackson (Supply Corps), U. S. Navy, was tried by general court martial by order of the Secretary of the Navy at the Navy Yard, Washington, D. C., on October 19, 1927, on the following charges: Charge 1.-Embezzlement of property of the United States intended for the naval service thereof. Charge II.-Falsehood. Charge III.-A. W. O. L. The court convicted the accused on the first charge, found him guilty by plea on the second charge, and convicted him on the third charge in a less degree than charged, and sentenced him to be dismissed from the United States naval service and to be imprisoned at hard labor for a period of 12 months. Counsel for the accused submitted a brief to the Secretary of the Navy contending that section 712 Naval Courts and Boards was invalid and that depositions were inadmissible in proof of charge I under the provisions of U. S. Code, title 34, section 1200, article 68 (act of Feb. 16, 1909; 35 Stat. 622), since the punishment for that offense might extend to confinement for more than one year. The Judge Advocate General, in an opinion which was approved by the Secretary of the Navy on January 9, 1928, stated in part as follows: "The question is presented whether the President may, in the administration of the Navy law on this subject, authorize the use of depositions in cases that might otherwise be classified as felonies, by providing, as he has provided (Sec. 712, Naval Courts and Boards), that— "In any case where a deposition is used by the prosecution the maximum confinement which may be adjudged is one year.' "As to this question, it has not been contended that Congress could not have authorized the use of depositions by the Navy in any case not capital, with the restriction that where a deposition was so used the maximum confinement to be adjudged should not, exceed one year; but it has been objected that where Congress, in effect, authorizes the use of depositions in misdemeanor cases it is inconsistent with law for the President to allow their use in all cases, however serious their nature, by the expedient of limiting to one year the maximum confinement which may be adjudged where depositions are used notwithstanding that conviction [P. 7] of identical offenses, if established by oral evidence, would expose the accused to confinement for more than one year and thus bring such offenses within the statutory definition of felonies. [C. M. O. No. 1-1928] "The answer to this objection is that Congress has made the use of depositions, both in the Army and Navy, dependent upon the maximum punishment which might be adjudged upon conviction, and has not made the use of depositions dependent upon other aspects of the offense for which the accused may be on trial. The punishments which may be adjudged, both in the Army and Navy, depend in the first instance upon the grade of the court before which the case is tried. Thus, an offense for which the death penalty might be imposed if tried by a general court martial, and which would in that court be classified as "capital," may be referred to a special court martial in the Army, which is not empowered to impose the death sentence or to adjudge confinement in excess of six months (Articles of War, arts. 12, 13). Accordingly, depositions may lawfully be used in any case arising in the Army by the expedient of bringing the accused to trial before a special court martial. This situation is specifically provided for in the Manual for Courts Martial U. S. Army 1921 (sec. 263) wherein it is stated, with reference to article 25, Articles of War, relating to the use of depositions: "A case referred to a special court martial for trial under the second proviso of A. W. 12 is not "a capital case" within the meaning of this paragraph or of A. W. 25, since the special court martial has no power to impose the death penalty. "Similarly, in the Navy, an offender may be brought to trial before a summary court martial or deck court for an offense which, if tried by general court martial, would expose him to more serious punishment, the difference being that in the Navy officers may be tried only by general court martial, whereas under the Articles of War (A. W. 12) '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,' in which event the limitations upon the punishing power of special courts martial 'shall be observed.' "The argument that the President cannot lawfully convert a felony into a misdemeanor by prescribing punishments which are not uniform for the same offense but which depend upon the circumstances of special cases, is thus fully answered. When it is attempted to apply to Navy (P. 8) cases the distinction between felonies and misdemeanors we immediately discover that the same offense in the Navy may be a felony in one case and a misdemeanor in another, depending upon the court by which it is tried, and that the same condition exists, to even a greater extent, in the Army. It follows that when the President limits the punishment which may be imposed by a general court martial in a given case, dependent upon the circumstances of the case, he is dealing with an offense which in any event would be only a misdemeanor if tried by a court martial of lower degree and therefore is not reducing the grade of the offense nor evading any legis lative intent or policy that the limitations of punishment shall be uniform in all cases and under all circumstances. If an officer of the Army empowered to order a general court martial may, 'in his judgment' as to what 'the interest of the service' requires, refer a capital case to a special court martial which has cognizance only of offenses which would be classified as misdemeanors in a civil court-and this is plainly authorized by the Articles of War-it is not apparent that the President is guilty of exceeding or abusing his authority by directing that, when the interests of the Navy require that depositions be used, the maximum confinement to be adjudged shall not exceed one year. "When Congress authorized the use of depositions by the Navy 'except in capital cases and cases where the punishment may be imprisonment or confinement for more than one year' it did so with knowledge of the law which it had previously enacted (act of February 27, 1895, 28 Stat. 889; article 63 A. G. N.; U. S. Code, title 34, sec. 1200) and which empowered the President to limit punishments by general court martial as follows: "Whenever, by any of the Articles for the Government of the Navy of the United States, the punishment on conviction of an offense is left to |