MURDER.*

1. Murder, at common law, is 'the unlawful killing, by a person of sound memory and discretion, of any reasonable creature in being and under the peace of the State, with malice aforethought either express or implied." A brief description of murder which would cover all cases likely to be brought before a court martial, under Art. 58 or otherwise, would besimply-homicide with malice aforethought. In many of the States, two or more degrees of murder are now distinguished by the statute law; murder in the first degree-generally defined as a killing accompanied by express malice, or a deliberate unlawful intent to cause the death of the particular person killed-being ordinarily alone made capital. Manslaughter, at common law, is distinguished from murder by the absence of malice aforethought. The State statutes have generally constituted degrees of manslaughter also; a different measure of punishment being assigned to each degree. The laws of the United States, though prescribing different punishments for manslaughter under different circumstances, recognize no discriminations of grades in either manslaughter or murder. XI, 592.

2. Where a soldier, while a superior acting in the line of his duty was attempting to arrest him for a grave breach of discipline, discharged his loaded musket at the latter with intent to kill him, but, missing him, killed a soldier standing near, held that the crime committed was clearly murder.3 XX, 420.

3. The taking of the life of a prisoner of war, when not concerting an escape or engaging in any violence or breach of discipline justifying such an extreme measure, is as fully

'Coke, Inst. 47; 4 Bl. Com. 95; 1 East, P. C. 214; 1 Russell, Cr. 482; 1 Gabbett, 454; 2 Wharton, Cr. L. § 930; 3 Greenl. Ev. § 130; Commonwealth v. Webster, 5 Cush. 304; G. O. 23 Dept. of California, 1865. (Remarks of Maj. Gen. McDowell.) "Murder, originally," says Foster, (p. 302, citing Bracton "de murdro,") was "an insidious secret assassination; occulta occisio, nullo sciente aut vidente." Now, secrecy in the commission of the act is significant only as evidence of legal malice.

2 See Holland v. State, 12 Fla. 117.

murder, as could be any homicide committed with deliberate malice in time of peace.' VII, 360.

4. Where, in a case of an officer charged with the murder of a soldier, it appeared that the killing was done with a sword properly worn as a side-arm, held that its employment did not justify the same presumption of deliberate intent to kill which the use of a deadly weapon authorizes in cases in general. XII, 96.

SEE SIXTY SECOND ARTICLE § 1.

MANSLAUGHTER § 2.

MILITARY COMMISSION, II § 4, 5.

MUSICIAN.

SEE APPOINTMENT § 4.
CHIEF MUSICIAN.

MUSTER OUT

SEE SIXTIETH ARTICLE § 17, note.
MEMBER OF COURT § 4.
PAY AND ALLOWANCES § 2.

MUSTER ROLL.

SEE DESERTION § 3.
EVIDENCE § 9.

MUTINY.

SEE TWENTY SECOND ARTICLE.

MANSLAUGHTER § 4.

'While it is lawful to kill an enemy "in the heat and exercise of war," yet "to kill such an enemy after he has laid down his arms, and especially when he is confined in prison, is murder." State v. Gut, 13 Minn. 341.

2

Compare case in G. O. 63, Dept. of the Tennessee, 1863.

N

NATIONAL CEMETERY.

1. The appraisement of land for a national cemetery, as finally made by a U. S. Court under Secs. 4871 and 4872, Rev. Sts., is conclusive upon the Secretary of War, who must thereupon pay the appraised value as indicated in the latter section. If indeed there has been fraud in the valuation by which the court has been deceived in its decree, or its original appraisement is deemed excessive, it may properly be moved for a new appraisement on the part of the United States. XXVI, 617.

2. Held that, notwithstanding the provision in Sec. 4872, Rev. Sts., that the jurisdiction of the United States over land ́taken for a national cemetery, by the right of eminent domain, "shall be exclusive,"-such a jurisdiction, where the land is within a State, cannot legally be vested in the United States, except by the cession of the State legislature. In the absence of such cession on the part of the State sovereignty, an Act of Congress must be powerless to confer such an authority." XXVII, 661.

3. Held that the Act of July 1, 1870, s. 1, (as incorporated in Sec. 4882, Rev. Sts.,) so far assimilated land purchased for a national cemetery to the sites and lands specified in Sec. 355, Rev. Sts., as to make it proper, before expending in improvements upon such land money appropriated therefor by Congress, to obtain the consent of the State legislature to the purchase, (without which exclusive jurisdiction could not be vested in the United States,) as well as the opinion of the Attorney General in favor of the validity of the title: this latter, especially, as Sec. 4870, Rev. Sts., requires the Secre

'See XIV Opins. of Attys. Gen. 27.

See the subsequent opinion of the Atty. Gen., in XIII, Opins. 131.

tary of War to obtain from the owner of the land, upon the purchase, "the title in fee simple for the same." XXXI, 500. 4. Held that the general annual appropriation for the maintaining of the national cemeteries could not legally be expended for the purchase of other land, even if such land was proposed to be used for the interment of soldiers; but that for such a purchase, as for any purchase of land by the United States, specific authority must be obtained from Congress. XLI, 50. [See PUBLIC PROPERTY § 5.]

5. By Sec. 4881, Rev. Sts., the superintendent of a national cemetery is authorized to arrest persons who injure, &c. grave-stones, trees, shrubs, &c., within the cemetery. Held that he could not, under this authority, legally arrest a person who fired a gun into or across the cemetery without causing any such injury as is specified in the statute, but, for the arrest aud punishment of such a trespasser, must have recourse to the local authorities. XXXII, 425.

6. Superintendents of national cemeteries are no part of the army but civilians, being required indeed by Sec. 4874, Rev. Sts. to be selected from persons who have been honorably discharged from the military service. They are therefore of course not subject to the articles of war or to trial by court martial, (see SIXTY THIRD ARTICLE § 8,) and, for any serious misconduct on the part of a superintendent, a removal from office would be the only adequate remedy. XXXV, 34; XXXVIII, 381, 557.

NEW MEMBER.

SEE MEMBER OF THE COURT § 3.

NEW TRIAL.

New or second trials have been of the rarest occurrence in our military service. They have only been had, and are only authorized, where the sentence adjudged upon the first trial

'Compare the opinion of the Atty. Gen. in XIII Opins. 131, given however before the passage of the Act of 1870. And see XIV Opins. 557.

2

See the subsequent opinion, concurring in this view, of the Attorney General, published in G. O. 25, Hdqrs. of the Army, 1878.

has been disapproved by the reviewing authority and the accused has asked for a second trial. It was held at an early period by Attorney General Wirt,' that the prohibitory provision of the Articles of War, (now contained in Art. 102,) that " no person shall be tried a second time for the same offence," did not apply to a case in which the accused himself requested a new trial, the objection to such trial being deemed to be subject to be waived by the consent and action of the party tried. The privilege of applying for and being allowed a re-trial-for it is not a right, since the trial may be granted or denied at the discretion of the proper superior-has naturally been but seldom exercised; parties convicted and sentenced being in general satisfied that the proceedings in their cases should be terminated by the disapproval, on whatever grounds the same may be based. The principal instances of new trials in our practice are-that of Captain Hall, (in whose case Mr. Wirt's opinion was given,) and those of which the proceedings are published in G. O. 18, War Dept., 1861, and G. O. 8, 9, and 26, First Mil. Dist. 1869. After a sentence has been duly approved and has taken effect, the granting of a new trial is of course beyond the power of a military commander or the President. XXXVII, 492; XXXIX, 233.

NOLLE PROSEQUI.

A prosecution before a court martial proceeds in the name and by the authority of the government. [See Art. 90.] The United States, therefore, through the Secretary of War, or the military commander who has convened the court, may require or authorize the judge advocate to enter a nolle prosequi in a case on trial, (or, less technically, withdraw or discontinue the prosecution,) either as to all the charges where there are several, or as to any particular charge or specification. But the judge advocate cannot exercise this authority at his own discretion, nor can the court direct it to be exercised. IX, 488, 533. [See COURT-MARTIAL, I §7; JUDGE ADVOCATE § 10.]

'I Opins. of Attys. Gen. 233. And see VI Id. 205.