tion prohibiting the transportation of liquor within certain reasonable limits near' the camps was well within the authority granted. Such a regulation has the effect of law, and it was not necessary to plead its existence in the information. The information properly covered this phase of the accusation, by alleging facts which would bring the acts charged within the regulations."

Evidence Admissibility.- In a prosecution under this section for selling alcoholic liquors to a seaman of the United States navy while in uniform, evidence on behalf of one of the defendants that he believed the liquors were ordered by a woman accompanying the seaman, were intended for her own use and that he charged them to her, is admissible. Fetters v. U. S., (C. C. A. 9th Cir. 1919) 260 Fed. 142, 171 C. C. A. 178. Regarding the admissibility of such evidence, the court said:

"There was testimony to the effect that George Fetters, who, it is admitted, was not in the dance hall, had some communication with his wife, and that he gave her a package which subsequently turned out to be liquor. Mrs. Fetters did not testify. Fetters testified that he got the order for the liquor, wine, and beer from Mrs. Lewis, and that Mrs. Fetters told him in the barroom that Mrs. Lewis wanted the 'stuff' packed in a box, that he charged Mrs. Lewis for it all. Thereupon the court struck out the testimony with reference to the whole thing,' meaning, we take it, the statements of Mrs. Fetters to Fetters; the judge stating that he thought the witness was telling ut Mrs. Lewis making application for the liquor and wine. Defendants' counsel objected to striking out the testimony, whereupon the court asked Fetters if all that he knew about the person the liquors 'were ordered for was what Mrs. Fetters came and told' him. Fetters replied, 'Yes.' Thereupon the court struck out the testimony on that subject, and defendants' counsel saved an exception. Fetters said that a few days afterwards Mrs. Lewis promised to pay the bill.

66 Inasmuch as it was not contended that Fetters was present with Cranfill or the party at the time the liquors were ordered, the principal circumstances relied upon by the prosecution were that Mrs. Fetters went to the barroom and got a package from her husband, and that the package contained liquor. Fetters denied having sold liquor to men in uniform, and said that he had issued orders to his employés that no liquors were to be sold to men in uniform.

"As against George Fetters we think it was prejudicial error to strike out his testimony as to what Mrs. Fetters told him when she went for the liquors. As the case developed, the effect of the ruling deprived him of his main defense, an honest belief on his part that the liquors were bought by order of Mrs. Lewis for her own use. Intrinsically the delivery of the liquors

would have only an ambiguous significance, and he had a right to explain the transaction, and in so doing could testify to what was then and there said to him by the person who, according to his story, was the only one present when he packed or delivered the liquors. Whether such testimony was true or false is not for us to say; but that it was competent is clear to us."

Vol. IX, p. 1163, sec. 13. [First ed.,

1918 Supp., p. 1022.]

Constitutionality. To same effect as second paragraph of 1919 Supplement annotation, see Blane v. U. S., (C. C. A. 9th Cir. 1919) 258 Fed. 921, 169 C. C. A. 641.

This section was enacted pursuant to the authority conferred on Congress by section 8 of article 1 of the Constitution of the United States "to raise and support armies" and "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

It is not the exercise of the police power of the state, but the constitutional authority of the United States. Grancourt v. U. S., (C. C. A. 9th Cir. 1919) 258 Fed. 25, 169 C. C. A. 163.

Amendment of this section by Act of July 9, 1918, C. 143, subc. xiv, 1918 Supp. p. 896, did not have the effect of relieving from liability to prosecution and punishment an offender against this section, in view of the saving provisions in R. S. sec. 13 (9 Fed. Stat. Ann. (2d ed.) 393), which section is still in force. Goublin v. U. S., (C. C. A. 9th Cir. 1919) 261 Fed. 5, 171 C. C. A. 601; De Four . U. S., (C. C. A. 9th Cir. 1919) 260 Fed. 596, 171 C. C. A. 360.

"House of ill fame, brothel or bawdyhouse." In Thaler v. U. S., (C. C. A. 6th Cir. 1919) 261 Fed. 746, the court, in discussing the terms house of ill fame, brothel or bawdyhouse," as used in this section, said:

"To constitute a place a bawdyhouse. it is not necessary that such house supply the prostitutes, nor that it cater only to the lecherously disposed. A house is bawdy, if persons are knowingly permitted to frequent it for the purpose of unlawful sexual intercourse (see People v. Gastro, 75 Mich. 127, 133, 42 N. W. 937), although such character is not generally known, save to the lasciviously inclined and to panders. If prostitution, in the sense of involving pecuniary reward, is thought essential (there are au thorities both ways), it is enough to say that the testimony in the instant case would support an inference of prostitution, although the record is silent as to money payment, as such, to the women.

"Although in one or more jurisdictions proof of reputation seems to be necessary to constitute a house of ill fame,' and

while in some jurisdictions proof of general reputation is permitted in support of a charge of keeping a house of that character (although in others it is not), yet in general popular acceptation the terms bawdyhouse,' 'brothel, and house of ill fame' are synonymous (see Century Dictionary); and in many jurisdictions they are held to be such (4 Words and Phrases, title House of Ill Fame'; 1 Words and Phrases, title Bawdyhouse,' and cases cited; State . Boardman, 64 Me. 523, 529; State v. Keithley, 142 Mo. App. 417, 423, 127 S. W. 406). In the statute here involved, the words are, house of ill fame, brothel or bawdyhouse.' An allegation that the hotel was a bawdyhouse' would thus have been sufficient, and the indictment as drawn was satisfied, so far as the description of the house is concerned, by proof that it was a 'bawdyhouse'; a finding to that effect being necessarily covered by the verdict.

"The statute makes it an offense to aid or abet prostitution,' even though there is no resort to a bawdyhouse, brothel, or house of ill fame. The gist of the offense charged is the assisting of the four persons in question to find (and be received in) a house of such character that their lustful purposes could therein be carried out. The three characterizations used in the indictment were merely descriptive of one and the same offense, and defendant could not have been prejudiced by the inclusion of the words house of ill fame,' even were the proof thought to be lacking as to such character, if to be distinguished from the other character assigned. Bennett v. United States (C. C. A. 6) 194 Fed. 630, 633, 114 C. C. A. 402; Daniels v. United States (C. C. A. 6) 196 Fed. 459, 464, 116 C. C. A. 233."

Necessity of district attorney signing indictment. An indictment for a violation of this section is not defective because of the failure of the district attorney to attach his signature thereto. Nakano v. U. S., (C. C. A. 9th Cir. 1920) 262 Fed. 761.

Information.- Keeping a house of illfame in violation of this section is not an infamous crime, but a misdemeanor both by the terms of the section and under Penal Laws, sec. 335, 7 Fed. Stat. Ann. (2d ed.) 987, and may be prosecuted by information. Pollard v. U. S., (C. C. A. 5th Cir. 1919) 261 Fed. 336; Blanc v. U. S., (C. C. A. 9th Cir. 1919) 258 Fed. 921, 169 C. C. A. 641; De Four . U. S., (C. C. A. 9th Cir. 1919) 260 Fed. 596, 171 C. C. A. 360; Brown v. U. S., (C. C. A. 9th Cir. 1919) 260 Fed. 752, 171 C. C. A. 490. In the last case the court said:

"The contention on the part of the plaintiff in error that the offense charged against her could only be prosecuted by indictment is wholly without merit, since the punishment prescribed by law for a conviction thereof is a fine or imprisonment not exreeding one year, or both, in the discretion of the court.

"By act of Congress a sentence to imprisonment for a period longer than one year, or to imprisonment and confinement at hard labor, may be ordered to be executed in a state prison or penitentiary, and such imprisonment, whether with or without hard labor, is an infamous punishment. Mackin v. United States, 117 U. S. 348, 352, 6 Sup. Ct. 777, 29 L. Ed. 909. But that a crime the punishment for which is confined to imprisonment in a county jail is but a misdemeanor, and may be prosecuted by information, has long been settled. United States v. Waller, Fed. Cas. No. 16,634, 1 Sawy. 701; United States t. J. Lindsay Wells Co. (D. C.) 186 Fed. 248; In re Bonner, 151 U. S. 242, 14 Sup. Ct. 323, 38 L. Ed. 149, and cases there cited; Ex parte Wilson, 114 U. S. 417, 425, 5 Sup. Ct. 935, 29 L. Ed. 89."

Sufficiency. An information for a violation of this section need not allege that the offense was committed knowingly. De Four v U. S., (C. C. A. 9th Cir. 1919) 260 Fed. 596, 171 C. C. A. 360.

A count is sufficient which charges the defendant with unlawfully, knowingly and wilfully receiving and permitting to be received and to remain for immoral purposes i. e., for the purpose of assignation and prostitution a woman into a structure, etc., then and there used for the purpose of lewdness, assignation and prostitution, within the prohibited zone of a cantonment used for military purposes. It is not necessary to charge the defendant with having been the owner of or in control of the premises. If he knowingly aided and abetted the owner or proprietor by giving a woman entrance to the premises for such purposes, his guilt is that of a principal and may be so charged. Pollard v. U. S., (C. C. A. 5th Cir. 1919) 261 Fed. 336.

Judicial notice of location of house. In a prosecution for a violation of this section, the court may properly take judicial notice of the fact the defendant's house was less than five miles from a United States military encampment. Anzine v. U. S., (C. C. A. 9th Cir. 1919) 260 Fed. 827, 171 C. C. A. 553.

Evidence - Admissibility.— In a prosecu tion for a violation of this section, evidence of the general reputation of the house maintained by the defendant is admissible for the value which it may have in determining the question of the defendant's guilt or innocence where there is other evidence tending to establish that the house was a house of ill-fame. Anzine t. U. S., (C. C. A. 9th Cir. 1919) 260 Fed. 827, 171 C. C. A. 553.

On the same principle, evidence that a woman living on the premises was soliciting prostitution there, when arrested, is admissible. Nakano v. U. S., (1920) 262 Fed. 761.

Evidence of a physician of the city board of health as to the diseased physical condition of certain women found on the prem

ises of the defendant, is admissible in a prosecution under this section, as evidence tending to prove the character of the house. Anzine v. U. S., (C. C. A. 1919) 260 Fed. S27, 171 C. C. A. 553; Nakano (1920) 262 Fed. 761.

. U. S.,

In a prosecution for a violation of this section, testimony of certain police officers repeating questions asked of the defendant by certain soldiers as to whether there were any women in the house conducted by the defendant, transactions of an immoral character with such women, and testimony of the policemen that the occupation of the women in the house was that of prostitution, was held to have been properly admitted as relevant, material and competent. Grancourt . U. S., (C. C. A. 9th Cir. 1919) 258 Fed. 25, 169 C. C. A. 163.

In a prosecution for a violation of this section evidence that the defendant had previously conducted houses of ill-fame, is admissible to rebut an inference of mistake, want of guilty knowledge, wrongful purpose or innocent intent. De Four . U. S., (C. C. A. 9th Cir. 1919) 260 Fed. 596, 171 C. C. A. 360.

In a prosecution under this section for assisting certain persons to find and be received in a hotel of such character that their lustful purposes could therein be carried out, evidence that they were served with liquor while in their rooms is relevant and admissible. Thaler v. U. S., (C. C. A. 6th Cir. 1919) 261 Fed. 746, wherein it was said: "There was no error in refusing to strike out the testimony that liquor was furnished the party, notwithstanding defendant was not present at that time. While neither he nor the hotel men were on trial for selling liquor (it was an offense to sell liquor to a soldier in uniform), the testimony that liquor was furnished was a natural part of the narrative of the entire occurrence; it bore upon the credibility of the story of the transaction in the vital respects involved; that the proof was strong enough without it did not render it irrelevant, and we cannot say that the furnishing of several orders of liquor to a party so composed, in a private room, had no tendency to support a conclusion that rooms were being let for purposes of illicit sexual relation. The fact that the liquor was ordered from and paid for to the bell boy did not necessarily destroy the relevancy of the testimony."

Sufficiency. In De Four . U. S., (C. C. A. 9th Cir. 1919) 260 Fed. 596, 171 C. C. A. 360, it was held that the evidence was sufficient to sustain a conviction for a violation of this section.

Sentence. Where a defendant is found guilty of a violation of this section, he may be sentenced to consecutive terms of imprisonment on the various counts and to pay a fine on each count, despite the fact that the offenses charged constitute but one continuous offense, if the aggregate of the sentences and fines are less than the maxi

Shooting of constable attempting to arrest without warrant as murder. A constable may arrest a deserter without a warrant and it the deserter resists and kills the constable Boathe is guilty of the crime of murder. wright v. State, (1919) 120 Miss. 883, 83 So. 311.

Vol. IX, p. 1242, sec. 1998. [First

ed., 1914 Supp., p. 43.]

Re-enlistment in naval service.-An enlisted man who in time of peace has incurred the penalties for desertion prescribed by this section and R. S. sec. 1996 (see same page of vol. IX), and who has received an unconditional pardon for such offense, is eligible for re-entry into the naval service. (1918) 31 Op. Atty. Gen. 225.

Vol. IX, p. 1254, art. 2. [First ed.,

1918 Supp., p. 977.]

The acceptance by an officer of a captain's commission, carrying the privileges and pay of the office, is amply sufficient proof that he is subject to military law. Ex p. Givins, (N. D. Ga. 1920) 262 Fed. 702.

"In the field." In Ex p. Jochen, (S. D. Tex. 1919) 257 Fed. 200, it was held that a superintendent of the quartermaster corps, serving with the army on the Mexican border during the war between the United States and Germany, and at a time when there were frequent disturbances on the border, was serving with the army "in the field" within the meaning of paragraph (d) of this section. In defining the term "in the field," Hutcheson, J., said:

"I hold that the terms in the field' were used by Congress in the meaning and sense given to them in the general orders of the War Department, as follows:

66 6

Field service is defined to be service in mobilization, concentration, instruction or maneuver camps as well as service in campaign, simulated campaign or on the march.'

"And, second, that if in this I am mistaken, and the words are not broad enough to embrace armies in concentration, maneuver, and mobilization camps, but must have application only where the armies are in or expecting actual conflict, that the conditions on the border during the period of Jochen's service were such as that, in the more limited sense as well, the armies with which he was serving were in the field.'" A cantonment in the United States where during a war troops are trained for overseas scrvice in the theater of operations is a place where troops may be said to be "in the field" within the meaning of this seetion. Consequently, a civilian employee at such

as a

com

over reserve

a cantonment charged with rendering false claims against the United States is subject to military law and may be tried by a courtmartial. Hines v. Mikell, (C. C. A. 4th Cir. 1919) 259 Fed. 28, 170 C. C. A. 28, reversing (E. D. S. C. 1918) 253 Fed. 817, in 1919 Supplement annotation. In passing upon this question, the court said: "In time of war, with some exceptions, practically the entire army is 'in the field,' but not necessarily in the theater of operations.' This would be undoubtedly true in case of war within our borders, and we can conceive of no reason why the army in America engaged in training and preparing for service on the firing line overseas should not be considered and treated ponent part of the entire army, the majority of whom were actually engaged on the firing line. To maintain those who were there,' it was necessary to have a force located so near thereto as to be available in the case of an emergency, and during the war just ended it was very essential that they should continue to increase such reserve force under the selective draft, and in order to do this the individual had to be mustered into the service and undergo strict discipline and training so that he might render efficient service under the modern mode of warfare. It seems perfectly clear that from the moment he entered the service he was in every sense of the word a part of the army, and when he was taken to the cantonment he thereby was serving with the army in the field,' doing practically everything required of a soldier save that of engaging in actual combat. All the training he received was for the purpose, as we have stated, ot qualifying him for the contest that was going on, as we all know, at a fearful rate.

"If an individual during peace had enlisted at an army post he could not, so long as he remained there, in any sense of the word be deemed to be engaged in the service in the field.' However, those who entered the cantonment took the first step which was to lead them to the firing line, and they were then as much in the field' in pursuance of such training as those who were encamped o the fields of Flanders awaiting orders to enter the engagement."

Civilian employees. It is not necessary that a person be in uniform in order to be a part of the land forces of the United States and subject to military jurisdiction. Thus, a civilian serving as superintendent of the quartermaster corps with troops on the Mexican border during the war between the United States and Germany, is a part of the land forces of the United States and may be tried by a military tribunal for offenses committed by him while with the army. Ex p. Jochen, (S. D. Tex. 1919) 257 Fed. 200.

Vol. IX, p. 1259, art. 8. [First ed.,

1918 Supp., p. 978.]

The term "district" used in this section has no technical military meaning, but in

cludes the territory occupied by a permanent military camp. Ex p. Givins, (N. D. Ga. 1920) 262 Fed. 702.

The commander of a camp may appoint a general court-martial when authorized to do so by the President. Ex p. Givins, (N. D. Ga.) 1920) 262 Fed. 702.

Vol. IX, p. 1273, art. 50. [First ed.,

1918 Supp., p. 986.]

a

Promotion of officer while awaiting trial by general court-martial as constructive pardon. -The promotion of an officer of the Navy while under charges awaiting trial by general court-martial does not operate as constructive pardon of the offenses charged against him. Thus where an ensign in the Navy, while under charges general in their nature and not peculiar to his office of ensign, was commissioned a lieutenant, and was thereafter found guilty of such charges by a general court-martial and sentenced to be dismissed from the service, the Secretary of the Navy was authorized by the law in mitigating his sentence with reference to the grade in which he was permanently serving. (1919) 31 Op. Atty. Gen. 419.

Vol. IX, p. 1281, art. 74. [First ed.,

1918 Supp., p. 991.]

Jurisdiction of civil courts.- Congress, by re-enacting in the Act of August 29, 1916, the Articles of War did not vest in the military courts in war time exclusive jurisdiction to try and punish a soldier for the murder of a civilian at a place within the jurisdiction of a state, and not within the confines of any camp or place subject to the control of the federal civil or military authorities, despite the words in Art. 74, except in time of war," qualifying the duty of a military commander, imposed by that article, to respond to the demand by state authority for the surrender of military offenders against the state criminal laws, and the grant in Art. 92, expressed in the form of a negative pregnant, of authority to courts-martial to try capital crimes when committed by an officer or soldier within the geographical limits of the United States and the District of Columbia in time of war, both of which provisions take their origin in the Act of March 3, 1863, and were drawn from the terms of that act as re-expressed in the Revision of 1874. Caldwell v. Parker, (1920) 252 U. S. 376, 40 S. Ct. 388, 64 U. S. (L. ed.)

Vol. IX, p. 1283, art. 82. [First ed.,

1918 Supp., p. 993.]

Persons not triable as spies by military tribunals. A person apprehended on United States territory not under martial law, who had not entered any camp, fortification, or other military premises of the United States and who had not come through the fighting lines or field of military operations,

cannot be tried as a spy by a military tribunal, and to such a case R. S. sec. 1343 and this article of the Articles of War cannot constitutionally be applied. 31 Op. Atty.Gen. 356.

Vol. IX, p. 1286, art. 92. [First ed.,

1918 Supp., p. 994.]

Jurisdiction of civil courts.- See supra, this title, 813.

p.

Time of war.- For military persons a time of war, within the meaning of this seetion, continues from the date of the declaration of war by Congress until some formal proclamation of peace by an authority comtent to proclaim it. Ex p. Givins, (N. D. Ga. 1920) 262 Fed. 702.

Necessity of allegation in record of courtmartial. The failure of the record of a court-martial, held under the provisions of this section, to aver the crime to have been committed in a time of war is not fatal. Ex p. Givins, (N. D. Ga. 1920) 262 Fed. 702.

Vol. IX, p. 1286, art. 93. [First ed.,

1918 Supp., p. 994.]

Sentence Place of execution. Since this article authorizes punishment as the court-martial may direct," the court may properly prescribe the kind and duration of the punishment for a person found guilty of manslaughter. The place of the execution of the sentence, however, is under legislative control and must be designated in accordance with the provisions of article 42 and section 2 of the Act of March 4, 1915. cordingly, a sentence of a court-martial, imposed on a person found guilty of manslaughter, is not defective because it does not include the place of confinement but leaves its designation to the reviewing authority. Ex p. Givins, (N. D. Ga. 1920) 262 Fed. 702.

Ac

Vol. IX, p. 1302, sec. 5. [First ed.,

1918 Supp., p. 893.]

Right to sue government.- In Covey r. U. S., (N. D. Ia. 1920) 263 Fed. 768, the court, quoting this section, said: "It thus appears that the Director of the Bureau of War Risk Insurance, subject to the general direction of the Secretary of the Treasury is empowered and directed to administer and enforce the provisions of the War Risk Insurance Act, and for that purpose is given full power and authority to establish the right to benefits, compensation, or insurance provided for in this act, the form of applications therefor, the method of making investigations and medical examinations, and all other things necessary or proper to a full and final determination of the rights of all claimants to compensation, the manner and form of the adjudications and award, and it is only in the event of disagreement as to the claim for losses, or

amount thereof, between the said bureau and the parties to such contract or policy,' that an action on the claim may be brought against the United States in the District Court, either in admiralty or otherwise, under the War Risk Insurance Act."

as

In

Vol. IX, p. 1319, sec. 302. [First ed., 1918 Supp., p. 910.] "Injury" including insanity. (1919) 31 Op. Atty. Gen. 431, it was the opinion of the Attorney General that Curtis M. Berry, an enlisted man who had served some time in the United States army and who was discharged therefrom because of his insanity, was properly admitted to St. Elizabeth's Hospital upon the order of the Secretary of the Treasury as an insane patient of the Bureau of War Risk Insurance. It was said that the hospital service to which Berry was entitled was included in the purposes for which appropriations were made for the use of war risk insurance, and the cost of the same should be paid out of these appropriations. It was further said that the only provision for a judicial inquiry into the mental status of any persons previous to their admission to St. Elizabeth's Hospital was in the case of indigent persons residing in the District of Columbia, and as Berry did not come within this class, no such judicial inquiry was neeessary in his case.

Vol. IX, p. 1322, sec. 312. [First

ed., 1918 Supp., p. 913.]

Effect of R. S. 4756.- See annotation under that section, ante, p. 718.

Vol. IX, p. 1325, sec. 400. [First

ed., 1918 Supp., p. 916.]

Application by whom made. The privi lege of applying for insurance under this section is confined to persons in the mili tary or naval service of the United States, including of course their duly authorized representatives. (1917) 31 Op. Atty.-Gen.

188.

Vol. IX, p. 1325, sec. 401. [First

ed., 1918 Supp., p. 916.]

Total disability occurring before application thereof. An enlisted man, who was in the active service at the time of the publication of the terms and conditions of the contract of insurance covering total permanent disability, and who sustained such disability before the expiration of 120 days from such publication, without having applied for such insurance, is entitled to be treated as having been automatically insured and to receive $25 per month. Bureau of War Risk Insurance is unauthorized to grant insurance against total permanent disability upon an application made therefor after such disability has been

The