688. Residents on a military reservation over which exclusive jurisdiction has been ceded by the State to the United States are not entitled to the use of the public schools nor can they legally be taxed for their support. But if allowed to avail themselves of such schools, and they send their children to them, they cannot avoid paying such charge as the local authorities may impose in regulating admissions. Thus held that officers stationed at Fort Trumbull, Conn., were not exempt from paying the fee exacted by the City of New London in cases where parents elect to send their children to a school in a district different from that in which they reside. 62, 348, November, 1893. 689. In view of the surrender by the State of New York to the United States of exclusive jurisdiction over David's Island, a coroner of Westchester County, N. Y., would not be authorized to hold an inquest on the bodies of persons dying on the island; but advised that such coroner be permitted upon the Island to hold inquests on the bodies of unknown persons found washed upon its shores or floating in the neighboring waters. 36, 143, October, 1889. 690. The laws of a State regulating the use of the water of streams thereof for irrigation purposes are not operative on a military reservation over which the United States has exclusive jurisdiction. Thus where the creek had its source on such a reservation, held that parties residing on said creek outside the reservation had no legal rights under the laws of the State in the waters of the creek until the same left the reservation, but recommended that the proper commanding officer be directed to so regulate the use of the water on the reservation that there would be no unnecessary waste. Card 2453, July and September, 1896. 691. A State statute requiring a report of births and deaths to be made in response to a call from the State Board of Health does not extend to a military reservation in such State over which the United States has exclusive jurisdiction, but remarked that the information requested might be furnished as a matter of comity. Cards 1826, November, 1895; 3270, June, 1897. 692. Held that there was no occasion for a statutory provision ceding back, or requiring the ceding back of jurisdiction, by the United States to the State, when a military reservation was abandoned and turned over to the Interior Department under the act of July 5, 1884. Such provision has sometimes appeared, as in the act of Congress of March 3, 1819 ("authorizing the sale of certain military sites"), as also in some of the State acts ceding jurisdiction, in which the grant is expressly limited to the period during which the premises may be held for public uses by the United States. But such provisions are deemed unnecessary, the jurisdiction ceasing of itself with the use and 71359-09-14 occupation of the land for the purposes for which it was granted. It is believed to be clearly inferable from the clause on the subject in the Constitution (Art. I, Sec. 8 cl. 17) that the State relinquishes its jurisdiction only for such term as the particular status subsists in contemplation of which it was ceded. 43, 475, November, 1890. 693. Sec. 5391, Rev. Sts., provides that any offence committed in any place ceded to and under the jurisdiction of the United States, shall, where not specially made punishable by any law of the United States, be visited with the same punishment as is provided for such offence by the laws "now in force" of the State within which such place is situated. This provision, orignally enacted March 3, 1825, was substantially re-enacted April 5, 1866. In 1832 it was ruled by the Supreme Court that the provision of 1825 was "limited to the laws of the several States in force at the time of its enactment." And in recent cases, arising in Montana and Colorado, it has been held that the provision in Sec. 5391 did not apply to the offence because these States, with their laws, did not come into existence till subsequently to the date of the enactment of 1866. Thus the section (5391) is operative neither as to offences committed in States which entered the Union since 1866, nor as to those committed in States where, April 5, 1866, there existed no criminal statute providing for the punishment of the particular offence. A modification of the existing law is called for. This cannot be done by legislation adopting beforehand all the criminal laws of a State which shall be in force at the time of the criminal act, because that would be a delegation by Congress of its legislative power to the States. The re-enactment, from time to time, therefore, of Sec. 5391, or of a provision to a similar effect, recommended. 57, 488, February, 1893; 61, 435, September, 1893; Card 3546, September, 1897. CHARGE. 694. In our practice, unlike that of the English, a military charge properly consists of two parts-the technical "charge” and the "specification." The former designates by its name, particular or general, the alleged offence; the latter sets forth the facts supposed to constitute such offence. VII, 600, April, 1864. There may be one or more 1See Fort Leavenworth R. R. Co. v. Lowe, 114 U. S., 525. 2U. S. v. Paul, 6 Peters, 141. "U.S. . Barnaby, 51 Fed. Rep., 20. 4U. S. . Curran, cited in Ex. Doc. No. 14, H. R., 53d Cong., 1st Sess. 5 See act of July 7, 1898, 30 Stat., 717. 6 An accusation against an officer or soldier, not thus separated in form, would be irregular and exceptional in our practice, and, till amended, should not be accepted as a proper basis for proceedings under the code. specifications to a particular charge. It is the office of the specifications to specify the particular acts done or omitted by the accused with time and place, which constitute the offences charged; each specification to set forth but one instance of offence. V, 613, January, 1864; 65, 373, July, 1894. 695. The same particularity is not called for in military charges which is required in indictments.' The essentials of a charge are: 1. That it shall be laid under the proper article of war or other statute. 2. That it shall set forth (in the specification) facts sufficient substantially to constitute the particular offence. These essentials being observed, the simpler, and less encumbered with verbiage and technical terms the charge is, the better, provided it be expressed in clear and intelligible English. However inartificial a pleading may be, it will properly be held sufficient as a legal basis for a trial and sentence, provided that the charge and specification, taken together, amount to a statement of a military offence either under a specific article or under the general article, No. 62. XVI, 551, September, 1865; XXVII, 524, February, 1869. 696. To charge a military offence as a violation of a certain article of war, naming it by its number, is regular and proper. When a statute or an article of war enacts that whosoever shall do a particular act shall receive a specified punishment, it thereby prohibits, by the strongest possible implication, the offence named. The prohibition is part and parcel of the statute or article-is, indeed, its essence-and the act committed is necessarily in violation of it, and is properly averred so to be. Denouncing a penalty or punishment for an offence is the legal language or mode for prohibiting it, and this language is so well understood as to have led to great uniformity in the use of the form in question. V, 77, October, 1863. See VII, 457, March, 1864. 697. Where an offence is clearly defined in a specific article, it is irregular and improper to charge it under another specific article. 1In regard to the proper form for a military charge, Atty. Gen. Cushing (7 Opins., 601, 603) says: "There is no one [form] of exclusive rigor and necessity in which to state military accusations." He adds further: "Trials by court-martial are governed by the nature of the service, which demands intelligible precision of language, but regards the substance of things rather than their forms. * * * The most bald statement of the facts alleged as constituting the offence, provided the legal offence itself be distinctively and accurately described in such terms of precision as the rules of military jurisprudence require, will be tenable in court-martial proceedings, and will be adequate ground-work of conviction and sentence." So it is observed by Atty. Gen. Wirt (1 Opins., 276, 286) that "all that is necessary" in a military charge is that it be "sufficiently clear to inform the accused of the military offence for which he is to be tried, and to enable him to prepare his defence." And see Tytler, 209; Kennedy, 69. It is ably remarked by Gould (Pleading, p. 4) that "all pleading is essentially a logical process;" and that, in analyzing a correct pleading, "if we take into view, with what is expressed, what is necessarily supposed or implied, we shall find in it the elements of a good syllogism." But it can hardly be expected that military charges in general will stand this test. So, where the article in which the offence is defined makes it punishable with a specific punishment to the exclusion of any other, it is error to charge it under an article, such as the 62d, which leaves the punishment to the discretion of the court. II, 51, March, 1863; XI, 312, December, 1864; XIV, 599, June, 1865; XX, 533, April, 1866; XXVIII, 575, May, 1869. On the other hand, it is equally erroneous to charge under a specific article, making mandatory a particular punishment, an offence properly charged only under Art. 62. I, 463, December, 1862; XXVII, 413, December, 1868. XXVIII, 575, supra. 698. For some time after the enactment in 1874 of the present new Articles of War, charges were not unfrequently laid under articles by their old numbers-as "violation of the 9th" (old number), instead of the 21st (new number) "Article," or "sleeping on post, in violation of the 46th" (old number), instead of the 39th (new number) "Article.” Held, in such cases, that the error was one which could only be taken advantage of by an objection in the nature of a plea in abatement— whereupon indeed an amendment could at once be made,-and that, in the absence of such objection, the mistake was to be treated as immaterial after finding and sentence. XXXVII, 313, February, 1876; XXXVIII, 495, 552, April, 1877. 699. Where a specific offence is charged (i. e., an offence made punishable by an article other than the general-62d-article), and the specification does not state facts constituting such specific offence, the pleading will be insufficient as a pleading of that offence. Legal effect may, however, be given to a pleading if the charge and specification taken together amount, to an allegation of an offence cognizable by a court martial under Art. 62. And in all cases-whatever be the form of the charge or specification-if the two are not inconsistent, and, taken together, make out an averment of a neglect or disorder punishable under this general article, the pleading will be sufficient in law and will constitute a legal basis for a conviction and sentence. XI, 491, March, 1865; XV, 680, October, 1865; XVI, 551, September, 1865. 700. It is illogical and faulty pleading to charge a secondary offence in lieu of the actual or principal offence, of which that charged was merely a consequence or incident. XXVII, 446, January, 1869. But where the act committed involves several distinct offences, the party may properly be arraigned upon the same number of separate charges. XXX, 489, July, 1870. 701. It is the established practice before courts-martial and military commissions to examine into as many accusations against the individual on trial, without regard to their connection with each other or their identity in respect to date or place, as it may be deemed proper and advisable by the prosecuting authority to adduce. The charges against such a prisoner may be in number unlimited and as various in character as the jurisdiction of the tribunal will permit. XIV, 40, January, 1865. Undue multiplication, however, of charges, or forms of charge, is to be avoided: thus charges should not in general be added for minor offences which were simply acts included in and going to make up graver offences duly charged. XV, 441, July, 1865. It may, indeed, sometimes be expedient where the offences are slight in themselves, and it is deemed desirable to exhibit a continued course of conduct, to wait, before preferring charges, till a series of similar acts have been committed, provided the period be not unreasonably prolonged; but in general charges should be preferred and brought to trial immediately or presently upon the commission of the offences. Anything like an accumulation, or saving up, of charges, through a hostile animus on the part of the accuser, is discountenanced by the sentiment of the service. XII, 348, February, 1865. 702. The prosecution is at liberty to charge an act under two or more forms, where it is doubtful under which it will more properly be brought by the testimony. In the military practice the accused is not entitled to call upon the prosecution to “elect” under which charge it will proceed in such, or indeed in any, case. XXXIII, 306, August, 1872. 703. Where there are two sets of charges against an accused, they should if practicable be consolidated, and one trial be had upon the whole, instead of two trials, one upon each set. XXX, 265, April, 1870. But after the accused has been arraigned upon certain charges, and has pleaded thereto, and the trial on the same has been entered upon, new and additional charges, which the accused has had no notice to defend, cannot be introduced or the accused required to plead thereto. Such charges should be made the subject of a separate trial, upon which the accused may be enabled properly to exercise the right of challenge to the court, and effectively to plead and defend. XXIV, 513, 577, May, 1867. 704. Such loose and indefinite forms of charge as "fraud," "worthlessness," "inefficiency," "habitual drunkenness," and the like, will be avoided by good pleaders. XIX, 280, December, 1865; XXVIII, 253, December, 1868. Such charges indeed, in connection with specifications setting forth actual military neglects or disorders (not properly chargeable under specific articles) may be sustained as equivalent to charges of conduct to the prejudice of good order and military dis 2 1See G. C. M. O. 71, Hdqrs. of the Army, 1879. "For the purpose of meeting the evidence as it may transpire." State r. Bell, 27 Md., 675. 3 As to the further objection to such charges, that the court would not be qualified to try them, under its oath, see § 226, ante. |