be allowed, by pleading guilty, to shut out testimony where the interests of the service require its introduction. XXIX, 124. But in all cases where evidence is introduced by the prosecution after a plea of guilty, the accused should of course be afforded an opportunity to offer rebutting evidence, or evidence as to character, should he desire to do so. XIII, 423.

2. While it cannot properly be ordered by a commander that courts martial convened by him shall not receive pleas of guilty, or shall take evidence on the merits notwithstanding pleas of guilty are interposed by the accused, it is yet proper, and in general desirable, particularly in cases of enlisted men, and especially where the specifications do not fully set forth the facts of the case, that the prosecution should be instructed or advised to introduce, with the consent of the court, evidence of the circumstances of the offence, where the plea is guilty equally as where it is not guilty. This for the reason that the court may be better enabled correctly to appreciate the nature of the offence committed and thus to estimate the measure of punishment proper to be awarded; and further that the reviewing authority may be better enabled to comprehend the entire case, and to determine whether the sentence shall be approved or disapproved, (in whole or in part,) or shall be mitigated or, (in whole or in part,) remitted. [See COURT MARTIAL, 1 § 9.] Where indeed the sentence is not discretionary with the Court, the former reason does not apply, though in such case the evidence may be desirable as the basis for a recommendation by the members. But where the sentence is mandatory, the latter reason applies with the greater force, since the mandatory punishments under the Articles of War are in general of the severest quality, and the reviewing officer in acting upon the same is called upon to exercise an especially grave discretion. In capital cases particularly, it is most important that all the facts of the case-all circumstances of extenuation as well as of aggravation-should be exhibited in evidence. III, 647; VI, 370.

In practice, the absence of evidence to illustrate the offence has been found peculiarly embarrassing in cases of deserters. In a majority of these cases in which the plea is "guilty," the record is found to contain no testimony whatever; and a full and intelligent comprehension of the nature of the offence

whether desired upon the original review of the proceedings or upon a subsequent application for remission of sentenceis thus, in many instances, not attainable.' XXVII, 180.

3. It not unfrequently happens upon trials of enlisted men that the accused, in pleading guilty, will proceed to make a statement, (verbal or written,) to the court, which is in fact inconsistent with the plea. Thus, in a case where the accused, being evidently ignorant of the forms of law, pleaded guilty to an artificially worded charge and specification, and immediately thereupon made a verbal statement to the court of the particulars of his conduct, setting forth facts quite incongruous with his plea; and no evidence whatever was introduced in the case-held that the statement, rather than the plea, should be regarded as the intelligent act of the accused, and that, upon considering both together, the accused should not be deemed to have confessed his guilt of the specific charge. VIII, 274. In such a case the court will properly counsel the accused to plead not guilty, and this plea being entered, will proceed to a trial and investigation of the merits. VI, 357, 370. And where, with a plea of guilty, there was offered by the accused a written statement setting forth material circumstances of extenuation, and the court without taking any testimony whatever, or apparently regarding the statement, proceeded to conviction and sentence; advisedthe case being one in which the sentence had been partly executed that this action constituted a reasonable ground for a remission of a portion of the punishment. XX, 120, 127, 177; XV, 142; XXIX, 421; XXX, 33; XXXII, 652; XXXIII, 42.

4. Wherever, in connection with the plea of guilty, a statement or confession, whether verbal or written, is interposed by the accused, both plea and statement should be considered together by the court; and if it is to be gathered from the statement that evidence exists in regard to the alleged offence which will constitute a defence to the charge, or relieve the accused from a measure of culpability, the court will properly call upon the judge advocate to obtain and introduce such evidence, if practicable. XIV, 585, 596; XVII, 48; XXVI, 548, 562; XXVIII, 123; XXIX, 11, 348; XXX, 673.

'See views of the Judge Advocate General, relating to the subject of this paragraph, published in G. C. M. O. 69, Hdqrs. of Army, 1877.

5. It has not unfrequently happened that enlisted men, charged with desertion, have, in connection with a plea of guilty, made a statement disclaiming having had, in absenting themselves, any intention of abandoning the service, and stating facts which, if true, constitute absence without leave only. In such a case the accused cannot in general fairly be convicted of desertion in the absence of an investigation, and the court will properly, therefore, induce him to change his plea to not guilty, or direct this plea to be entered and take such evidence as may be attainable, to show what offence was actually committed. XXVI, 562.

6. Statements inconsistent with the plea have not rarely been made in cases like larceny where several distinct elements are required to constitute the crime in law. For example, a soldier will plead guilty to a charge of larceny, and thereupon make a statement disclaiming the peculiar intent, (animus furandi,) necessary to the offence, thus really admitting only an unauthorized taking. In such cases the court will properly instruct the accused that he should change his plea to not guilty, and, if he declines to do so, will properly call upon the judge advocate to introduce evidence showing the actual offence committed. XXVIII, 677; XXIX, 658.

7. A court-martial is authorized, in any case, in its discretion, to permit an accused to withdraw a plea of not guilty,

'The views of the Judge Advocate General, as presented in §§ 3-5, have been adopted in the General Orders of the War Department and in numerous Orders of the various military department &c. commands. In G. C. M. O. 2, War Dept. 1872, the Secretary of War observes, in regard to two cases of soldiers, as follows: "The written statements submitted by the accused are contradictory of their pleas of 'guilty.' The Court should have regarded these statements as neutralizing the effect of their pleas, and should have had the accused instructed as to their legal rights, and advised to change their pleas with a view to the hearing of testimony. It not unfrequently happens that soldiers do not understand the legal difference between absence without leave and deser tion, or are wholly unable to discriminate as to the grade of their offenses, as determined by their motives. They thus, sometimes, ignorantly plead guilty and are sentenced for crimes of which they may be actually innocent. The proceedings, findings, and sentences are disapproved." And see G. C. M. O. 31, War Dept. 1876.

and substitute one of guilty, and vice versa, or to withdraw either of these general pleas and substitute a special plea. And wherever the accused applies to be allowed to change or modify his plea, the court should in general consent provided the application is made in good faith and not for the purpose of delay, and to grant it will not result in unreasonably protracting the investigation. XXX, 672.

8. Objections to the charges or specifications in matters of form should be taken advantage of by special pleas in the nature of pleas in abatement. Such are objections to the specifications as inartificial, indefinite, or redundant; or as misnaming the accused, (or other person required to be specified,) or misdescribing him as to his rank or office; or as containing insufficient allegations of time or place, &c. In such cases the objection should be raised by a special plea in abatement, in order that errors capable of amendment may be amended on the spot by the judge advocate, and—the plea of not guilty, (or guilty,) being then made-the trial may proceed in the usual manner. Objections of this class, not thus taken, will properly be considered as waived by the plea of guilty or not guilty, and their existence will not then affect the validity of the proceedings or sentence. V, 577; VII, 234; IX, 518; XV, 117; XIX, 640; XXIV, 140; XXV, 100; XXVIII, 372; XXX, 288; XXXIV, 32; XXXV, 450; XXXVIII, 654.

Where without preliminary objection, the accused pleads guilty or not guilty to a specification, in which he is incorrectly named or described, such plea will be regarded as an admission by the accused of his identity with the person thus designated, and he cannot thereafter object to the pleadings on account of misnomer or misdescription. V, 577; XV, 117; XXV, 100.

9. Objections to the charges and specifications on account of matter of substance,-as that they do not contain the necessary allegations, or otherwise do not set forth facts constituting military offences,-should properly he made at the outset of the proceedings by a special plea in the nature of a demurrer, or they will in general be regarded as waived.

So, objections going to the legal constitution or composition of the court, or to its jurisdiction, should also properly be specially presented when the accused is first called upon to

plead: valid objections of this radical character, however, are not waived if the accused, instead of submitting a special plea, pleads over to the merits, since consent cannot make legal that which is illegal, or, in a criminal case, confer jurisdiction where none exists in law. XIX, 640. [See COURT MARTIAL, II § 7 and note.]

10. Facts and circumstances which are properly matters of evidence are not legitimate subjects of pleas; as, for example, circumstances going to extenuate the offence. Thus held that good conduct of the accused in battle subsequent to the commission of the offence charged could not properly be presented in the form of a plea. VI, 79. So held that the fact that the charge was preferred through personal hostility to the accused was not matter for plea, but, if desired to be taken advantage of, should be offered in evidence. XXXIV, 554.

PLEA IN ABATEMENT.

SEE CHARGE § 5, 12.
PLEA§ 8.

POSSE COMITATUS.1

1. Prior to the enactment of s. 15, Act of June 18, 1878, c. 263, it was deemed legal, under the implied authority of s. 27 of the Judiciary Act of Sept. 24, 1789, (now contained in Sec. 787, Rev. Sts.,) for a U. S. marshal or deputy marshal to call, where necessary, upon a military force of the United States to assist him in the execution of the process of the courts of the United States; and such employment was not unfrequently resorted to, the military being also in general expressly directed by the proper superior to comply with the call of the marshal. In the existing state of the law, however, i. e. in view of the legislation of 1878, the army cannot legally be called upon to serve upon a marshal's posse, since

1" Formerly the posse comitatus, which was the strength to prevent felonies, must in a great proportion have consisted of military tenants who held lands by the tenure of military service. If it is necessary for the execution of the law, it is not only the right of soldiers but it is their duty to exert themselves in assisting the execution of a legal process." Lord Mansfield, C. J. in Burdett v. Abbott, 4 Taunton, 450.