no appropriation from which the payment could be made. Card 3762 January, 1898.

1339. Sec. 6 of the act of April 26, 1898, "For the better organization of the line of the army," in providing that in war time no additional increased compensation (¿. e., additional to the twenty per centum increase) shall be allowed to soldiers performing what is known as extra or special duty, applies to increased compensation made directly from appropriations for the support of the army and not to payments made from the company, bakery or post exchange funds. Cards 4414, 4539, 4540, 5442, June to December, 1898; 5661, January, 1899.

1340. The army regulation providing for the payment from the company fund of the extra compensation of twenty-five cents per day to enlisted men who are cooks has reference to ordinary enlisted men and does not apply to persons enlisted under the act of July 7, 1898, as cooks with the rank and pay of corporals.1 Card 4762, August, 1898. 1341. War between the United States and Spain as declared by act of Congress approved April 22, 1898, existed when the act of April 26, 1898, was passed. Held, therefore, that enlisted men in all departments of the army ceased to be entitled to extra duty pay upon the date of the approval of the last named act. Cards 4089, 4135, 4143, 4144, May, 1898; 4256, June, 1898.

1342. The deficiency appropriation act of May 4, 1898, covering a period to January 1, 1899, appropriated a named sum for "extra pay to soldiers employed on extra duty under the direction of the Quartermaster's Department." Held that this appropriation was subject to the prohibition contained in the act of April 26, 1898; and that unless there was a time of peace before January 1, 1899, it should be allowed to lapse. Card 4089, May, 1898.

1343. Held that as long as the 20 per centum increase of pay was paid to enlisted men under the act of April 26, 1898, the payment of extra duty pay was prohibited. Cards 6322, 6340, 6411, April and May, 1899.

1344. Held that under the Army Appropriation Act approved May 26, 1900, all enlisted men of the regular or volunteer army not serving in Porto Rico, Cuba, the Philippine Islands, Hawaii, and the Territory of Alaska, could be paid extra duty pay from May 26, 1900, in accordance with the usual regulations and appropriation laws governing such payments. Card 6322, June, 1900.

1345. Held, in view of the provisions of Circular 22, A. G. O., 1898, A. R. 960, and sec. 6 of the act of April 26, 1898, that an enlisted man could not receive extra compensation for services as reporter of a court-martial. Card 7334, November, 1899.

The pay of cooks enlisted since the act of March 2, 1899, is that of sergeants of infantry.

EXTRA PAY-OF VOLUNTEERS.

1346. Under the act of March 3, 1865, c. 81, s. 4, by which 'officers of volunteers" in commission at its date and continuing in service to the end of the civil 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, May, 1868. 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, July, 1866. 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, September, 1873.

F.

FINAL STATEMENT.

1347. In a case where the legality of making payment on certain transferred final statements was questioned on the ground of the alleged fraudulent enlistment of the soldier, remarked that the practice of allowing the final statements of a soldier to be cashed by a noncommissioned officer or other soldier, by whom they are then presented for payment, resulting, where, as in this case, the payment is questioned, in placing enlisted men in the attitude of contesting money claims with the United States, was unmilitary and impolitic and should be discontinued. 50, 47, December, 1891.

1348. Where a company commander certified in the usual form to the correctness of the final statement of a soldier of his company, in which statement such soldier was erroneously given credit for an amount of detained pay not actually due him, and upon which he was

1 For the latest statutes respecting extra pay upon muster out of both officers and enlisted men of U. S. Volunteers, see act of January 12, 1899 (30 Stats., 784), and Army Appropriation Acts, approved March 3, 1899, and May 26, 1900. 2 Compare United States v. Merrill, 9 Wallace, 614.

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thereupon paid such amount by the paymaster, held, in view of par. 736, A. R. (1889), that the company commander was accountable for the amount thus wrongfully paid and lost to the United States.1 50,358, November, 1891.

1349. Where the company commander who certified to the final statements of a soldier of his company neglected to have debited against his account therein an amount of thirty dollars due by the soldier as the purchase money of his discharge, so that this amount was not in fact collected from the soldier, held that the officer was chargeab.e with the amount thus lost by his neglect. 65, 375, July, 1894.

1350. Where a discharged volunteer soldier made out fraudulent final statements and presented the same to a paymaster for payment, adrised that the matter be referred to the Department of Justice, that the man might be proceeded against under Sec. 5438, Rev. Sts. Card 7284, November, 1899.

1351. Where a discharged soldier regularly assigned his final statements which upon presentment for payment were found to call for more than was in fact due, held that the difference between the amount paid and the amount erroneously called for on the final statement could be made the subject of a claim against the discharged soldier, the assignor, but not against the United States. The man having reenlisted, it was further held that a stoppage against his pay to satisfy the claim above referred to would be a stoppage to satisfy a private claim and therefore not authorized. Card 8355, June, 1900.

FINDING.

1352. 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, March, 1876; XXXVIII, 188, July, 1876. But where an accused pleads guilty to the specification and not guilty to the charge, the question submitted to the court is whether the facts alleged in the specification sustain the charge as a matter of law, and in such a case the court may find guilty of both charge and specification. 49, 471, October, 1891.

1353. 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 finding of not guilty, or guilty without

Note that A. R. 654 of 1895 (736 of 1901), contains the provision (not in A. R. 736 of 1889) that "the disbursing officer cannot protect himself in an erroneous payment made without due care by charging lack of care against the officer who gave the certificate.'

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 § 1359, post), would be an incongruous verdict. IV, 275, October, 1863. 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, May, 1864.

1354. 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. V, 398, February, 1865; XVI, 73, April, 1865.

1355. 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, August, 1866.

1356. 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 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, January, 1864.

1357. 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, February, 1865; XIV, 228, March, 1865; XXVI, 435. February, 1868.

1358. 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, October, 1864.

1359. 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 absencewithout-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-without-leave, 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. VII, 357, 616, 634, March and May, 1864; IX, 24, 26, 46, 49, May, 1864; XIII, 655, May, 1865.

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1360. 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 absence-without-leave under a charge of a violation of the 42d Article of War in abandoning his post before the enemy. XI, 274, December, 1864. 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. XI, 276, December, 1864. 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

See 13 Opins. At. Gen., 460.

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

3A 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 r. State, 34 Ohio St. 212; and see § 1093, ante.