13, 1866,) as including clerical service, and of the continued practice of the government in accord with such interpretation, held that enlisted men detailed as clerks of courts martial might properly be regarded as entitled, for constant labor as such "of not less than ten days' duration," to the extra duty pay of twenty cents per diem. XXXVII, 297; XLII, 545. But held, in view of the positive prohibition of Sec. 1765, Rev. Sts., that a soldier could not legally be allowed any additional compensation for such service further or other than such laborer's pay; and this although at the time of acting as clerk he was on a leave of absence. XLII, 564.

SEE FORFEITURE, II § 4.

EXTRA PAY.

(Under the Act of March 3, 1865, c. 81, s. 4.) Under this statute, by which "officers of volunteers” in commission at its date and continuing in service to the end of the war were granted three months' extra pay, held that a certain volunteer officer duly mustered out at the end of the war was entitled to this extra allowance, although, when mustered out, he was under a sentence of forfeiture of pay for three months; this sentence having been evidently intended to affect his ordinary pay and not the gratuity accorded by the Act. XXV, 545. But held that an officer of volunteers mustered out, not by reason of the cessation of hostilities at the end of the war, but for the purpose of enabling him to accept a commission in the regular army, was not entitled to the extra pay. XXI, 502. And held that a medical storekeeper, appointed under the Act of May 20, 1862, and mustered out at the end of the war, was not entitled to the said extra pay, he having been not an officer of volunteers, but, though his tenure of office was limited to the period of the war, an officer of the regular army. XXXIV, 459. [See REGULAR ARMY.]

'Compare Merrill v. United States, 9 Wallace, 614.

F.

FELONY.

SEE MILITARY OFFENCE.

FIELD OFFICER'S COURT.

SEE EIGHTIETH ARTICLE.

FINDING.

1. The finding of the court should be governed by the evidence, considered in connection with the plea. Where no evidence is introduced, the general rule is that the finding should conform to the plea. XXXVII, 409; XXXVIII, 188.

2. The finding on the charge should be supported by the finding on the specification, (or specifications,) and the two findings should be consistent with each other. A finding of guilty on the charge would be quite inconsistent with a find ing of not guilty, or guilty without attaching criminality, on the specification. So, a finding of guilty upon a well pleaded specification, apposite to the charge, followed by a finding of not guilty either of the offence charged or some lesser offence included in it, (see § 8 infra,) would be an incongruous verdict. IV, 275. No matter how many specifications there may be, it requires a finding, of guilty or not guilty, on but one specification, (apposite to the charge,) to support a similar finding upon the charge. IX, 90.

3. There should be a separate and independent finding upon each charge and specification, and each separate finding should cover the charge or specification as to which it is made; so that if any charge or specification is deemed by the court to be proved only in part, the finding shall show specifically what is found to be proved and what not. VII, 236; XVI, 73. [See § 4 infra.]

4. It is a peculiarity of the Finding at military law, that a court martial, where of opinion that any portion of the allegations in a specification is not proved, is authorized to find the accused guilty of a part of a specification only, excepting the remainder; or, in finding him guilty of the whole, (or any part,) to substitute correct words or allegations in the place of such as are shown by the evidence, to have been inserted through error. And provided the exceptions or substitutions leave the specification still appropriate to the charge and legally sufficient thereunder, the court may then properly find the accused guilty of the charge in the usual manner. XXIII, 188.

[As to the proceeding in a case of a finding of a lesser included offence, requiring an exception and substitution in the charge as well as in the specification, see § 8 infra.]

5. It is not competent for a court-martial to find an accused not guilty of the specification, and yet guilty of the charge, where there is but one specification. By finding him not guilty of the specification they acquit him of all that goes to constitute the offence described in the charge. Where the court believe that the accused is guilty of the charge, but not precisely as laid in the specification, they should find him guilty of the latter, but with such exceptions or substitutions as may be necessary to present the facts as proved on the trial, and then guilty of the charge. V, 576.

6. Familiar instances of the exercise of the authority to except and substitute in a finding of guilty occur in cases where, in the specification, the name or rank of the accused, or some other person, is erroneously designated, or there is an erroneous averment of time or place, or a mistaken date, or an incorrect statement as to amount, quantity, quality, or other particular, of funds or other property, &c. XIII, 398, 402; XIV, 228; XXVI, 435.

7. In finding guilty upon a specification,-to except from such finding the word or words which express the gravamen of the act as charged and found, is contradictory and irregular. As-from a finding of guilty on a specification to a charge of fraud under Art. 60, to specially except the word "fraudulent" or "fraudulently," while at the same time finding the accused guilty generally upon the charge. XI, 41, 44, 81. [See FIFTY FIFTH ARTICLE § 2.]

8. The practice of making exceptions and substitutions in the findings is well illustrated by the finding-authorized at military law when called for by the evidence1—of a lesser kindred offence included as a constituent element in the specific offence charged. Of this form of verdict the most familiar instance is the finding of guilty of absence-without-leave under a charge of desertion. A full acquittal of desertion includes, of course, an absence without leave involved in it; but where the evidence falls short of establishing a desertion but shows an unauthorized absenting of himself by the accused, he may and should, be convicted of absence-withoutleave, as his actual offence. In arriving at this conclusion, the findings on the specification and charge should be consistent, and the finding on the former should be such as to support the latter. In their finding of guilty upon the specification, the court should in terms except from its application such words of the specification as allege or describe desertion exclusively, and substitute words describing the lesser offence; the words "did desert," for example, being excepted, and the words "did absent himself without authority" being substituted. The finding on the charge should regularly be "not guilty, but guilty of absence-without-leave."3 VII, 357, 616, 634; IX, 24, 26, 46, 49; XIII, 655; XXIV, 242.

9. But the authority to find guilty of a minor included offence, or otherwise to make exceptions or substitutions in the finding, cannot justify the conviction of the accused of an offence entirely separate and distinct in its nature from that charged. Thus held that it was not a finding of a lesser included offence to find the accused guilty merely of absencewithout-leave under a charge of a violation of the 42d Article of War in abandoning his post before the enemy. XI, 274. And so held of a finding, under a charge of a violation of Art. 39, of not guilty but guilty of a violation of Art. 40.

'See XIII Opins. of Attys. Gen. 460.

Compare Reynolds v. People, 83 Ills. 479, and note the similar authority given in criminal cases in the United States courts, by Sec. 1035, Rev. Sts.

A simple finding, however, of guilty of absence without leave, though an irregular form, would amount in law to an acquittal of the higher offence charged. Compare Morehead v. State, 34 Ohio St. 212; and see DESERTION § 18.

XI, 276. So, where a soldier charged with "conduct to the prejudice of good order and military discipline," in concealing the fact that a fellow soldier had appropriated to his own use certain public property, was found not guilty of the specification as laid, but guilty of "having stolen the property himself," and guilty of the charge, and was accordingly sentenced to imprisonment,-held that such a finding was manifestly unauthorized. Having been found not guilty of the offence set forth in the specification and which alone he was called upon to answer, he should have been acquitted on both charge and specification: the offence of which he was found guilty was not alleged against him, and not being included in that charged, could not properly form the subject of a finding. The remission of his sentence therefore recommended. XXXIV, 569.

10. It is a further peculiarity of the Finding at military law that, where an accused is charged with "conduct unbecoming an officer and a gentleman," or with any specific offence made punishable by the Articles of war, and the court is of opinion that while the material allegations in the specification or specifications are substantially made out, they do not fully sustain the charge as laid, but do clearly estab lish the commission of a neglect of military duty or a disorder in breach of military discipline, as involved in the acts alleged, the accused may properly be found guilty of the specification, (or specifications,) and not guilty of the charge but guilty of conduct to the prejudice of good order and military discipline." [See § 12 infra.] Such a form of finding is now common in our practice, (especially where the charge is laid under Art. 61,) and its legality is no longer questioned. V, 265; IX, 656; XI, 87; XXIX, 299.

11. The authority thus to find, however, has not been extended beyond the cases indicated in the last paragraph: the reverse, for example, of this form of finding, has never been sanctioned. A finding of guilty of a certain specific offence, under a charge of another specific offence, or under a charge of "conduct unbecoming an officer and a gentleman" or of "conduct to the prejudice of good order and military discipline," would be wholly irregular and invalid. Thus a finding of guilty of disobedience of orders,