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The Articles for the Government of the Navy which are contained in the Revised Statutes amongst other things provide:

hereby conferred upon such courts for such purpose; and it shall be the duty of the United States district attorney or the officer prosecuting for the Government in any such court of original criminal jurisdiction, on the certification of the facts to him by the military court, commission, court of inquiry, or board, to file an information against and prosecute the person so offending, and the punishment of such person, on conviction, shall be a fine of not more than $500 or imprisonment not to exceed six months, or both, at the discretion of the court: Provided, That the fees of such witness and his mileage, at the rates allowed to witnesses attending the courts of the United States, shall be duly paid or tendered said witness, such amounts to be paid out of the appropriation for the compensation of witnesses: Provided further, That every person not subject to military law, who before any court-martial, military tribunal, or military board, or in connection with, or in relation to any proceedings or investigation before it or had under any of the provisions of this act, is guilty of any of the acts made punishable as offenses against public justice by any provision of chapter 6 of the Act of March, 1909, entitled "An Act to codify, revise, and amend the penal laws of the United States" (volume 35, United States Statutes at Large, page 1088), or any amendment thereof, shall be punished as therein provided.

"Art. 24. No witness before a military court, commission, court of inquiry, or board, or before any of

ficer conducting an investigation, or before any officer, military or civil, designated to take a deposition to be read in evidence before a military court, commission, court of inquiry, or board or before an officer conducting an investigation, shall be compelled to incriminate himself or to answer any question the answer to which may tend to incriminate him, or to answer any question not material to the issue when such answer might tend to degrade him.

"Art. 25. A duly authenticated deposition taken upon reasonable notice to the opposite party may be read in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or a military board, if such deposition be taken when the witness resides, is found, or is about to go beyond the State, Territory, or District in which the court, commission, or board is ordered to sit, or beyond the distance of one hundred miles from the place of trial or hearing, or when it appears to the satisfaction of the court, commission, board, or appointing authority that the witness, by reason of age, sickness, bodily infirmity, imprisonment, or other reasonable cause, is unable to appear and testify in person at the place of trial or hearing: Provided, That testimony by deposition may be adduced for the defense in capital

cases.

"Art. 26. Depositions to be read in evidence before military courts, commissions, courts of inquiry, or military boards, or for other use in military administration, may be

'Article 5. All persons who, in time of war, or of rebellion against the supreme authority of the United States, come or are found in the capacity of spies, or who bring or deliver any seducing letter or message from an enemy or rebel, or endeavor to corrupt any person in the Navy to betray his trust, shall suffer death, or such other punishment as a court-martial may adjudge." 15

"Article 6. If any person belonging to any public vessel of the United States commits the crime of murder without the territorial jurisdiction thereof, he may be tried by court-martial and punished with death." 16

"Article 23. All offenses committed by persons belonging to the Navy while on shore shall be punished in the same manner as if they had been committed at sea.

17

A paymaster's clerk on a ship employed in the Navy in time. of war is subject to court martial.18

Trials of civilians in cases arising in the land forces are usually by provisional courts 19 or by military commissions.20 The power or military tribunals over civilians not attached to the army or navy has not yet been clearly delimited.21 A spy or a man committing an act of war in civilian clothes 22 is considered

taken before and authenticated by any officer, military or civil, authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths.

"Art. 27. The record of the proceedings of a court of inquiry may, with the consent of the accused, be read in evidence before any courtmartial or military commission in any case not capital nor extending to the dismissal of an officer, and may also be read in evidence in any proceeding before a court of inquiry or a military board: Provided, That such evidence may be adduced by the defense in capital cases or cases extending to the dismissal of an officer.

"Art. 32. A military tribunal may punish as for contempt any per

son who uses any menacing words, signs, or gestures in its presence, or who disturbs its proceedings by any riot or disorder: Provided, That such punishment shall in no case exceed one month's confinement or a fine of $100, or both."

15 Article 5, Comp. St., § 2966. 16 Article 6, Comp. St., § 2967. 17 Article 23, Comp. St., § 2984. 18 Johnson v. Sayre, 158 U. S. 109. 19 The Grapeshot, 9 Wall. 129, 19 L. ed. 651; U. S. v. Walters, 268 Fed. 69.

20 Ex parte Milligan, 4 Wall. 2, 18 L. ed. 281.

21 See the argument on the part of the United States in Ex parte Milligan, 4 Wall. 2, 15, 51, 18 L. ed. 281.

22 Proceedings of a Board of General Officers, held by order of His Excellency General Washington,

to be a member of the army of the enemy and as such is subject to execution for violation of the laws of war. There are dicta in an opinion of the Supreme Court, which divided upon the subject, to the effect that so long as the civil courts are open, a civilian cannot be punished by a military court for giving aid and comfort to the enemy. 23 The subject is discussed more at length in the author's "Commentaries on the Constitution.'' 24 The judgment of a court martial having jurisdiction over the accused and the offense is res adjudicata and is a complete defense against a prosecution for the same offense before a civil tribunal.25

It has been held that the record of a court martial upon which

Commander-in-chief of the Army of the United States of America, respecting Major John André, Adjutant General of the British Army, September 29, 1780. Philadelphia. Printed by Francis Bailey in Market Street, 1780; Chandler's Criminal Trials, Vol. II; American State Trials, VI, 464; Trial of John Y. Beall, as a Spy and Guerrillero by Military Commission. New York: D. Appleton and Company, 443 and 445 Broadway. 1865.

23 Beall's Trial supra. The Assassination of President Lincoln and the Trial of the Conspirators, David E. Herold, Mary E. Surratt, Lewis Payne, George A. Atzerodt, Edward Spangler, Samuel A. Mudd, Samuel Arnold, Michael O'Laughlin. Compiled and arranged by Ben Pitman,. Recorder to the Commission. Publishers: Moore, Wilstach & Baldwin, 25 West Fourth Street, Cincinnati, New York, 60 Walker Street. 1865.

Trial of the Assassins and Conspirators for the Murder of Abraham Lincoln, and the Attempted Assassination of Vice-President Johnson and the Whole Cabinet. The most intensely interesting trial on record. Containing the evidence in full, with

arguments of Counsel on both sides, and the verdict of the Military Commission. Correct likenesses and graphic history of all the assassins, conspirators, and other persons connected with their arrest and trial. Philadelphia: Barclay & Co., 602 Arch Street.

The assassination of Abraham Lincoln, Flight, Pursuit, Capture, and Punishment of the Conspirators, by Osborn H. Oldroyd, with an introduction by T. M. Harris, late BrigadierGeneral U. S. V., and Major-General by Brevet, a member of the Commission. Washington, D. C.; O. H. Olyroyd, MDCCCCI.

The Judicial Murder of Mary E. Surratt, by David Miller DeWitt. Baltimore: John Murphy & Co. 1895.

During the Civil War Franklin E. Smith was arrested by the military authorities in Massachusetts upon the charge of fraud in connection with a Government contract for army supplies. The proceedings were not pressed against him. He afterwards published a book in vindication of himself.

24 See also supra notes to § 465; U. S. v. Wolters, 268 Fed. 69. 25 Grafton v. U. S., 206 U. S. 333.

retired officers sat should show in time of war that these were employed on active duty in the discretion of the President, and that such a defect cannot be supplemented in opposition to an application for the writ of habeas corpus by proof of such employment.26

By a former statute officers of the Regular Army were not competent to sit on court martials to try the officers or soldiers of other forces,27 except in certain special cases.28 It was held that a sentence was void when rendered against a volunteer officer by a court martial composed wholly of regular officers,29 or by one containing a regular officer whose presence was essential to a quorum.30

By the Sixty-second Article of War, which was in force before the war with Germany, "All crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing Articles of War, are to be taken cognizance of by a general, or a regimental, garrison, or field-officers' court-martial, according to the nature and degree of the offense, and punished at the discretion of such court." 31 This gave the civil courts of the United States concurrent jurisdiction with the courts-martial of the crimes specified in this article, when punishable by the statutes of the United States.32 The Articles of War enacted August 29, 1916,33 did not divest the civil courts of this concurrent jurisdiction,84 except in the cases of persons subject to military law who committed manslaughter, mayhem, arson, burglary, robbery, larceny, embezzlement, perjury, assault with intent to commit any felony, or with assault to do bodily harm.35 As to these it was held; that

26 Ex parte Henkes, 267 Fed. 276. 27 Former Article of War 77, U. S. R. S., § 1342.

28 U. S. R. S., § 1342. 29 McClaughry v.

S. 49.

Deming, 186 U.

30 U. S. v. Brown, 206 U. S. 240. 31 U. S. R. S., § 1342.

32 Franklin v. U. S., 216 U. S. 559, 54 L. ed. 615; Ex parte Dunn, 250 Fed. 871.

33 39 St. at L. 650, Comp. St.,

§ 2308a; Ex parte Dunn, 250 Fed. 871.

34 U. S. v. Hirsch, 254 Fed. 109. (District Court, E. D. New York. November 11, 1918.) U. S. v. Hunt, 254 Fed. 365, supra, §§ 461a, 464.

35 These were punishable by Article 93 of the Act of August 29, 1916, 39 St. at L. 664; U. S. v. Hunt, 254 Fed. 365, supra, §§ 461a, 464.

the military authorities had superior jurisdiction, which could be asserted by the commanding officer of the brigade, although the captain and major had surrendered the offending soldier to the custody of the civil authorities.36 A statute subsequent to the Articles of War punishing all persons for an offense penalized by these articles does not deprive courts-martial of their power to punish for such an offense, persons subject to their jurisdiction.37

Where the civil and the military courts have concurrent jurisdiction an offender convicted by a court-martial cannot defeat its sentence because of the prior pendency of a prosecution against him in a civil court,38 when the civil authorities have not interfered. 39

A District Court of the United States will not interfere with the conduct of a court-martial or the enforcement of a sentence thereof unless the court-martial has exceeded its jurisdiction.40 Proof that a defendant at the time of the commission of the offense charged was in a haze or stupor, does not deprive the court-martial of jurisdiction by raising an issue of insanity when the only plea was "not guilty."

An army officer was discharged by the writ of habeas corpus from imprisonment under the sentence of a court-martial for a violation of an Article of War when he had been previously sentenced to dismissal for violation of another Article upon proof of the same facts.41

§ 483e. Criminal practice. In General. In criminal actions, the District Courts of the United States follow the old practice. at common law, except in so far as the same has been changed by Federal statute.1 The State practice is not followed 2 except in

36 Ex parte King, 246 Fed. 868. 37 U. S. v. Barry, 260 Fed. 291. 38 Ex parte Dunn, 250 Fed. 871. 39 See supra, § 58, infra, § 489. 40 Ex parte Tucker, 212 Fed. 569, supra, § 461g.

41 Ex parte Henkes, 267 Fed. 276. See infra, § 520. On the general subject of interference by the writ of habeas corpus with the orders of court marshals, see supra, §§ 461g, 464; for the protection of soldiers,

sailors, and officers of the Army and Navy from criminal proceedings before civil tribunals, see supra, § 461e.

$ 483e. 1 U. S. V. Maxwell, 3 Dill. 275; U. S. v. Reid, 12 How. 361, 13 L. ed. 1023; U. S. v. Nye, 4 Fed. 888; Erwin v. U. S., 2 L. R. A. 229, 37 Fed. 470, 488.

2 Jones v. U. S., C. C. A., 162 Fed. 417, supra, § 483; U. S. v. Bopp, 232 Fed. 177; U. S. v. Phelan, 250 Fed.

927.

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