discretion to the commanding officer; upon the application being made, he must use his utmost endeavors to aid the civil officers in apprehending and securing the accused in order to bring him to trial. The application required by this Article should be made in case of a crime committed before enlistment, as well as after it.1 108. The commanding officer, before surrendering the party, should require the application to be sufficiently specific to identify the accused and to show that he is the person charged with a crime or offense within the class described in the Article. Without compliance with such requirement the officer cannot surrender nor the civil authorities arrest, within a military command, an accused officer or soldier. If the commanding officer is doubtful whether the application is made in good faith and in the interest of law and justice, he will require it to be explicit and be sworn sworn to; and, in general, the preferable and only satisfactory course will be to require the production, if practicable, of a due and formal warrant or writ for the arrest of the party.2 109. Soldiers not within the immediate control or jurisdiction of the military authorities, as an officer on leave or an enlisted man on furlough, may be arrested in the same manner as any citizen. 110. The Article does not apply to civilians employed or residing at a military post accused of civil crime, and application cannot be required to be made to the commanding officer before arresting the party; but it should be made or notice given him as a matter of comity.3 Nor does the Article apply to offenses against the laws of the United States, or to those committed in places over which 1 Dig. Op. J. A. G. 95. 2 Id. the United States has exclusive jurisdiction. It applies only to officers or soldiers accused of an offense. It does not apply to the service of a subpoena to appear as a witness before a civil court. In such case the civil official should, as a matter of comity, first apply to the commanding officer, and where the application for such service is so made the commanding officer will, as a matter of comity in return, facilitate the service and issue the necessary permit or order to enable and cause the officer or soldier to attend the court.1 III. When a soldier is serving a sentence of confinement imposed by a court-martial, he cannot, in general, properly be surrendered under this Article. The civil authorities should defer their application till the military punishment is executed or remitted.2 112. In cases where the act committed constitutes an offense against both military and civil law, that authority which first assumes jurisdiction of the case retains it until completed. If the accused has been arrested and is under charges for trial by the courts of either jurisdiction, the authorities of the other should await the result of the operations and judgment. But whatever that may be, if the case is adjudicated and the sentence completed, he may then be called to account for the offense against the laws of the other jurisdiction, and his former trial is no bar to trial by its courts. 113. Service of Process on Military Reservations over which Jurisdiction has not been Ceded. Where a military post is within the territorial boundaries of a State, and there has been no cession of jurisdiction by the State, the State officials have the same right and authority to serve process there, and its courts have the same jurisdiction over acts done and crimes committed within the limits of the post, as elsewhere in the State; the ownership or occupation by the United States not excepting it from the operation of State laws.1 Likewise, where a military post is located in a Territory, the territorial courts are authorized to issue process for the arrest of officers and soldiers charged with crime, or to serve process in civil actions and to attach, replevy upon, or take in execution property belonging to them within the post, not specially exempted from seizure, and commanding officers of such posts should interpose no obstacle to due service, within their commands, of the legal process of the territorial courts, these courts not existing under a sovereignty distinct from that of the United States, but being established under the provision of the Constitution empowering Congress "to make all needful rules and regulations respecting the territory belonging to the United States." 2 114. Service of Process on Reservation where Jurisdiction has been Ceded by the State. As a general rule, military posts situated within the limits of a State are occupied under a grant with cession of jurisdiction given by the State. In most cases the State reserves the right to serve process within the ceded territory in both criminal and civil cases arising outside the same. 115. Crimes committed within the ceded territory are cognizable by the United States authorities only; 3 but persons, whether soldiers or citizens, who commit crimes outside that territory and have violated the State laws cannot take refuge upon the United States reservation and be exempt from arrest. In fact the commanding officer should, when requested, assist in the arrest of such criminals. 1 Davis' Military Law, p. 460; Ft. Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, 527, 533. 2 Davis' Military Law, p. 461. 3 Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 532, 533; In re Ladd, 74 Fed. Rep. 41, 116. All military persons are amenable to suit in the civil courts in cases arising out of their personal relations and responsibilities to civilians, or for damages arising from any excess of authority to the detriment of another, or for illegal or excessive punishment imposed or an unauthorized arrest or confinement.1 CHAPTER X CHARGES AND SPECIFICATIONS 117. The charge designates in general terms the offense committed, while the specifications state the specific acts which constitute the offense designated in the charge. They ought to be drawn up with all the essential precision, certainty and distinctness which the prisoner is entitled to demand in an indictment at common law; though they need not be drawn in the same technical forms.1 Each charge must be sustained by one or more specifications, each of which must allege facts which sustain the charge, and which brings the offense within the jurisdiction of a court-martial. It is not necessary that the charge and specification should be drawn up with all the formality and use of technical terms of a civil indictment, but it is sufficient that they show the offense committed with the time, place and circumstances which will bring it within the jurisdiction of the court-martial, and they must be so fully and clearly stated that the accused can ascertain therefrom the offenses with which he is charged and from what accusation he must defend himself. The offense charged must be laid under the proper article of war and the facts constituting it be clearly stated, and the name of the accused, his rank, 13 Greenleaf, Ev., Sec. 471. |