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constitute an offence of the class intended to be made punishable by this Article. XXXIII, 333, September, 1872.

FOURTEENTH ARTICLE.

Any officer who knowingly makes a false muster of man or horse, or who signs, or directs, or allows the signing of any muster roll, knowing the same to contain a false muster, shall, upon proof thereof by two witnesses, before a court-martial, be dismissed from the service, and shall thereby be disabled to hold any office or employment in the service of the United States.

FIFTEENTH ARTICLE.

Any officer who, willfully or through neglect, suffers to be lost, spoiled, or damaged, any military stores belonging to the United States, shall make good the loss or damage, and be dismissed from the service.

SIXTEENTH ARTICLE.

Any enlisted man who sells, or willfully or through neglect wastes the ammunition delivered out to him, shall be punished as a court-martial may direct.

SEVENTEENTH ARTICLE.

Any soldier who sells, or through neglect loses or spoils, his horse, arms, clothing, or accoutrements shall be punished as a court-martial may adjudge, subject to such limitation as may be prescribed by the President by virtue of the power vested in him.

5. This Article is quite independent of the regulations contained in Art. LX, A. R., relating to boards of survey. The latter pass upon questions of pecuniary responsibility for the loss, &c., of public property. The court martial, under this Article, simply imposes punishment. XXXVII, 352, February, 1876; 59, 196, April, 1893.

6. The description," his clothing," refers to articles thereof which are regularly issued to the soldier for his use in the service and with the safe-keeping of which he is charged. His property in them is qualified by the trust that he cannot dispose of them while he is in the military service, and can only use them for military purposes. 59, 196, April, 1893.

7. Only three offences are made punishable by this article-selling, through neglect losing, and through neglect spoiling, the property named therein. Any other form of wrongful disposition should be

1See G. C. M. O. 28, War Dept., 1872. But as to whether it is a sufficient defence to a charge under this Article that the accused, in the absence of due inquiry, believed the certificate to be true, see Samuel, 298, and O'Brien, 302.

* Where a trial is had, the proceedings of a board of survey, already ordered in the same case, will not be competent evidence to prove the fact of the loss, &c., charged. G. C. M. O. 45, Dept. of the Missouri, 1877; do. 15, Dept. of Texas, 1877.

3 See ruling of reviewing officer in G. O. 35, Dept. of the East, 1869; and see also do. 31, Dept. of the South, 1877; G. C. M. O. 15, Dept. of Texas, 1880; all sustain the text.

made the subject of a charge under Article 60 or Article 62. 26, 238, August, 1888.

8. Improper dispositions of property in the charge and use of soldiers, other than the dispositions indicated in this article will in general properly be charged under Article 62.1 Likewise the selling, through neglect losing &c., by soldiers, of property issued to them, but not mentioned in Article 17, should be charged under Article 62. Thus held that a selling or losing of the following articles was not punishable under Article 17, but under Article 62, viz., sheets, pillows, pillow-cases, mattress covers, shelter tent, barrack bag, great-coatstrap, tin cup, spoon, knife, fork, meat ration can, cartridges. 17, 119, May, 1887; 21, 151, December, 1887; 52, 245, February, 1892.

9. That an accused did "Unlawfully dispose of," or "otherwise unlawfully dispose of" clothing, arms, &c. is not a proper form of allegation in a specification or charge under this article. 58, 139, February, 1893; 65, 384, July, 1894.

10. A charge or specification under this article should not be expressed in the alternative—as that the accused "did sell or through neglect lose" &c. The selling, through neglect losing, and through neglect spoiling are distinct offenses and should be so charged. 28, 35, 110, November, 1888; 29, 162, January, 1889; 30, 83, February, 1889; 51,343, January, 1892; 58, 139, February, 1893; 62, 449, December, 1893; 65, 384, July, 1894.

11. Clothing issued and charged to a soldier is not now (as it was formerly) regarded as remaining the property of the United States. It is considered as becoming, upon issue, the property of the soldier, although his use of it is, for purposes of discipline, qualified and restricted. Thus he commits a military offence by disposing of it as specified in this Article, though the United States may suffer no loss. 59, 196, April, 1893.

12. The present Seventeenth Article (as amended by the act of July 27, 1892) does not authorize a stoppage or forfeiture of pay to reimburse the United States. The stoppage which was enjoined by the old form of the Article is dropped entirely from the present statute. The latter provides for punishment only-does not provide any means of reimbursing the appropriation out of which the lost, &c., property was paid for, or of repairing the loss or damage as such. So, held, that a sentence, upon a conviction under this Article, which adjudged a stoppage of pay "to reimburse the United States for the value of the

1 As the pawning of a revolver. G. C. M. O. 77, Dept. of the Missouri, 1874. Sothe gambling away of clothing. G. C. M. O. 41, Dept. of Texas, 1873. So, the spoil, ing by a bugler of his bugle. G. C. M. O. 36, War Dept., 1876.

2 See § III, p. 18, Court-Martial Manual of 1901.

clothing alienated," was unauthorized and inoperative. 59, 196, April, 1893; Cards 7814, December, 1894; 1068, February, 1895.

EIGHTEENTH ARTICLE.

Any officer commanding in any garrison, fort, or barracks of the United States who, for his private advantage, lays any duty or imposition upon, or is interested in, the sale of any victuals, liquors, or other necessaries of life, brought into such garrison, fort, or barracks, for the use of the soldiers, shall be dismissed from the service.

NINETEENTH ARTICLE.

Any officer who uses contemptuous or disrespectful words against the President, the Vice-President, the Congress of the United States, or the chief magistrate or legislature of any of the United States in which he is quartered, shall be dismissed from the service, or otherwise punished, as a court-martial may direct. Any soldier who so offends shall be punished as a court-martial may direct.

13. When a trial of an officer or soldier has been resorted to under this Article, it has usually been on account of the use of "contemptuous or disrespectful words against the President," or the government mainly as represented by the President. The deliberate employment of denunciatory or contumelious language in regard to the President, whether spoken in public, or published, or conveyed in a communication designed to be made public, has, in repeated cases, been made the subject of charges and trial under this Article;' and, where taking the form of a hostile arraignment, by an officer, of the President or his administration, for the measures adopted in carrying on the civil war, a juncture when a peculiar obedience and deference were due, on the part of the subordinate, to the President as executive and commander-in-chief, was in general punished by a sentence of dismissal. V, 491, December, 1863; XX, 516, April, 1866. On the other hand, it was held that adverse criticisms of the acts of the President, occurring in political discussions, and which, though characterized by intemperate language, were not apparently intended to be disrespectful to the President personally or to his office, or to excite animosity against him, were not in general to be regarded as properly exposing officers or soldiers to trial under this Article. To seek indeed for ground of offence in such discussions would ordinarily be inquisitorial and beneath the dignity of the Government. V, 491, December, 1863.

TWENTIETH ARTICLE.

Any officer or soldier who behaves himself with disrespect toward his commanding officer shall be punished as a court-martial may direct.

1See cases in G. C. M. O. 43, War Dept., 1863; G. O. 171, Army of the Potomac, 1862; do. 23, id., 1863; do. 52, Middle Dept., 1863; do. 119, Dept. of the Ohio, 1863; do. 33, Dept. of the Gulf, 1863; do. 68, Dept. of Washington, 1864; do. 86, Northern Dept., 1864; do. 1, id., 1865; do. 29, Dept. of N. C., 1865.

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14. The disrespect here indicated may consist in acts or words;1 and the particular acts or words relied upon as constituting the offence should properly be set forth in substance in the specification. It must be shown in evidence under the charge that the officer offended against was the "commanding officer" of the accused. The commanding officer of an officer or soldier, in the sense of this Article, is properly the superior who is authorized to require obedience to his orders from such officer or soldier, at least for the time being. Thus where a battalion was temporarily detached from a regiment and placed under the orders of the commander of a portion of the army distinct from that in which the main part of the regiment was included, held that it was the commander of this portion who was the commanding officer of the detachment; and that the use by an officer of such detachment of disrespectful language in reference to the regimental commander (who had remained with and in command of the main body of the regiment) was properly chargeable not under this Article, but rather under the 62d. XVIII, 407, November, 1865.

15. Held that disrespectful language used in regard to his captain by a soldier, when detached from his company and serving at a hospital, to the surgeon in charge of which he had been ordered to report for duty, was an offence cognizable by court martial, not under this Article but under Art. 62. VI, 53, March, 1864.

TWENTY-FIRST ARTICLE.

Any officer or soldier who, on any pretense whatsoever, strikes his superior officer, or draws or lifts up any weapon, or offers any violence against him, being in the exetution of his office, or disobeys any lawful command of his superior officer, shall suffer death, or such other punishment as a court-martial may direct.

16. The term officer (superior officer") in this as in all other articles of war means commissioned officer. IX, 90, May, 1864.

17. To justify a conviction of the capital offence of offering violence against a superior officer, it should be made to appear in evidence that the accused knew or believed that the person assaulted was in fact an officer in the army and was his "superior" in rank. XXIX, 485, December, 1869.

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18. Under a charge of a violation of this Article, in offering violence to a superior officer, it should be alleged and proved that the officer

1G. O. 44, Dept. of Dakota, 1872. And see G. C. M. O. 28, War Dept., 1875; G. O. 47, Dept. of the Platte, 1870.

"G. C. M. O. 35, Dept. of the Missouri, 1872.

3G. O. 53, Dept. of Dakota, 1871.

See the provision, introductory to the Articles of War, of Sec. 1342, Rev. Sts., in which it is specified that “the word officer, as used therein, shall be understood to designate commissioned officers."

5 See G. O. 34, Dept. of Virginia, 1863.

assaulted was at the time "in the execution of his office." I, 462, December, 1862; IX, 90, May, 1864.

19. In charging a striking or doing of violence to a superior officer under this Article, it is allowable, in a case where the assault was fatal, to add in the specification, "thereby causing his death," as indicating the measure of violence employed. XXIX, 485, December, 1869.

20. The "superior officer" in the sense of this Article, need not necessarily have been the commanding officer of the accused at the time of the offence. The article is thus broader than Art. 20, which relates only to an offence against a "commanding officer." XIX, 248, December, 1865.

21. A non-compliance by a soldier with an order emanating from a non-commissioned officer, or offering violence to the latter, is not an offence under this Article, but one to be charged, in general, under the 62d. XI, 491, March, 1865; IX, 90, May, 1864.

22. Under a charge of a disobedience of the order of a superior officer in violation of this Article, it should be alleged, and should appear from the evidence introduced, that the order or "command" was "lawful." XXVII, 488, January, 1869. An officer or soldier is not punishable under this Article for disobeying an unlawful order. XXVI, 603, June, 1868. But the order of a proper superior is to be presumed to be lawful, and should be obeyed, where it is not clearly and obviously in contravention of law. Unless the illegality is unquestionable, he should obey first, and seek redress, if entitled to any, afterwards. A military inferior in refusing or failing to comply with the order of a superior on the ground that the same is, in his opinion, unlawful, does so, of course, on his own personal responsibility and at his own risk. XXVI, 256, December, 1867.

23. To justify, from a military point of view, a military inferior in disobeying the order of a superior the order must be one requiring something to be done which is palpably a breach of law and a crime or an injury to a third person, or is of a serious character (not involving unimportant consequences only) and, if done, would not be susceptible of being righted. An order requiring the performance of a military duty or act cannot be disobeyed with impunity unless it has one of these characters. If not triable under the 21st Article such disobedience may be tried under the 62d. In the Cedarquist case (Card 97, July, 1894), the Acting Judge-Advocate General said:

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There could be no more dangerous principle in the government of the Army than that each soldier should determine for himself whether an order requiring a military duty to be performed is neces

1See § 1853, post.

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