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, October, 1873.

1361. 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 establish 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 § 1363, post.) 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, November, 1863; IX, 656, September, 1864; XI, 87, November, 1864; XXIX, 299, October, 1869; 64, 193, March, 1894. 1362. The authority thus to find, however, has not been extended beyond the case 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 (or of a violation of Art. 21) under a charge of mutiny in violation of Art. 22, or a finding of drunkenness on duty (or of a violation of Art. 38) under a charge for a drunken disorder laid under Art. 62 or 61, would be not only unauthorized but now almost unprecedented, and, if such a finding were made, it could scarcely fail to be formally disapproved. And so of a finding of "conduct unbecoming an officer and a gentleman” under a charge of "conduct to the prejudice of good order and military discipline.” XI, 274, December, 1864; XVI, 532, September, 1865.

1363. The general finding of "conduct to the prejudice," &c., in the cases indicated in § 1361, ante, is sanctioned in order to prevent a failure

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of justice, not for the purpose of relieving the accused of any of his due share of culpability. It should not therefore be resorted to where the specific offence charged is substantially made out by the testimony. Thus in a case where the facts set forth in the specification to a charge of conduct unbecoming an officer and a gentleman," and clearly estab lished by the evidence, fixed unmistakably upon the accused dishonorable behavior compromising him officially and socially-held that a finding by the court that he was guilty only of “conduct to the prejudice of good order and military discipline" should not be approved: in such a case the court should be reconvened for the purpose of inducing, if practicable, a finding in accordance with the facts and with justice. XXX, 495, July, 1870.

1364. Where, upon the finding, the vote on a charge or specification is tied, the accused is, in law, found not guilty thereon; a majority vote being necessary to any conviction. XXXI, 610, August, 1871; XXXII, 126, November, 1871; XLV, 334, June, 1882; Card 2003, January, 1896. A statement in the record to the effect that the vote upon a specification, &c., was a tie and that the accused was therefore acquitted, is of course irregular and improper. XXXII, 126, supra. 1365. It is an important part of the judgment of the court, in a case where the evidence is conflicting, to determine the measure of the credibility to be attached to the several witnesses. In its finding, therefore, the court may, in connection with the testimony, properly take into consideration the appearance and deportment of the witnesses on the stand, and their manner of testifying especially when under cross-examination. XXX, 383, 447. May and June, 1870.

1366. In a case where a court-martial made such exceptions and substitutions in its finding upon the specification to a charge of "Forgery to the prejudice of good order and military discipline" as to negative the material allegation of false writing, held that there was no legal basis for the finding arrived at of guilty of the charge. 31, 117, March, 1889.

1367. Held that a finding, under a charge of desertion, of not guilty of desertion but guilty of a violation of the 40th Article of War, was not allowable and should be disapproved; the offence made punishable by that article-quitting guard, &c.— not necessarily being or involving an absence-without-leave in the military sense, and the finding not being necessarily a conviction of the absence-without-leave contained in desertion. LVII, 22, October, 1888.

1See § 2232, post, and compare Callanan r. Shaw, 24 Iowa, 441.

That a court cannot arbitrarily disbelieve and reject from consideration the statement, duly in evidence, of a witness, not clearly shown to have perjured himself, is held in the ase of Evans e. George, 80 Ills., 51.

1368. Upon a proposed enactment providing that the members of courts martial be allowed, at their own request, to have their individual votes upon the finding or sentence entered upon the record, advised that the same be not favored by the Secretary of War. Such a proceeding would indeed relieve self-respecting members from being implicated in an unjust or irrational finding or sentence, but it would materially impair the effect of the judgment of the court if the composition of the vote were to be thrown open to scrutiny and discussion. The proceeding indeed might readily, contrary to the spirit of the 84th Article, disclose the votes of all the members-as where, in a court of nine, four requested a record of their personal votes. 63, 263, January, 1894.

FINE.

1369. The only fine known to military law is the fine authorized to be imposed by way of punishment by sentence of court martial. No military commander is empowered under any circumstances to impose a fine upon an officer or a soldier. VIII, 444, May, 1864.

1370. A fine is distinguished from a "stoppage." The former is a punishment and therefore imposable only by court martial. The latter is a charge on account, being an enforced reimbursement, by means of a debit entered against the pay of the party on the rolls, either for an amount due the United States-as for the value of public property lost, extra clothing issued, reward paid for apprehension as a deserter, &c. or for an amount due an individual and expressly authorized by law or regulation to be thus charged. XXXV, 457, July, 1874; 38, 88, January, 1890.

1371. Fines adjudged by courts martial accrue to the United States. A court martial cannot impose a fine for the benefit of an individual, nor can a fine adjudged in general terms be in any part appropriated for the benefit of an individual by executive authority. VII, 52, 643 January and May, 1864; VIII, 632, June, 1864. A court martial, in sentencing a party to pay a fine, has no authority to direct the collection of the same by a provost marshal, or by any compulsory process: such a direction added in a sentence should be disregarded as mere surplusage. VIII, 298, April, 1864.

1372. An officer on trial applied to have certain witnesses summoned from a distance and a continuance granted to await their appearance. To this the court consented on his making an affidavit setting forth material matter expected to be established by the witnesses. When these appeared it was found that they could give no material testimony

1See par. 1390, Army Regulations (1568 of 1901), and § 79, ante.

upon the points indicated in the affidavit. The court, in making up its sentence upon conviction, proposed to impose upon the accused (in connection with imprisonment) a fine of two hundred dollars as the estimated cost to the Government of procuring the attendance of the said witnesses. Adrised that the facts stated did not constitute a proper basis for the imposition of such fine as a punishment for the offence for which the officer was convicted. His conduct in the matter, if deemed so culpable as to constitute a military offence, should be made the subject of a separate charge to be investigated on a separate trial. XXIX, 329, October, 1869.

1373. Where an officer, sentenced (in connection with dismissal) to the payment of a fine and to imprisonment till the fine was paid and held for some time in confinement by reason of the non-payment of the fine, applied to be released, suggested that, in order to protect the Government from fraud, the procedure prescribed by Sec. 1042, Rev. Sts., in cases of "poor convicts," imprisoned under sentences of United States courts, be in substance followed, before exercising any clemency in his case. XXXIV, 329, June, 1873.

FLAG OF TRUCE.

1374. The use of flags of truce by the enemy during the civil war was recognized as a belligerent right.' But the admission by flag of truce within the lines of the U. S. army in time of war of persons coming from the lines of an enemy cannot entitle such persons to immunity from subsequent inquiry into their character and business, or from restraint and detention upon reasonable grounds of suspicion appearing against them. Moreover a flag of truce does not operate as a safe-conduct, allowing the party admitted under it a free passage through the territory or a dispensation from the legal effects of war, but affords him a merely temporary protection not to be continued after the immediate mission of the flag has been accomplished. V, 193, October, 1863; VI, 434, October, 1864; VIII, 612, June, 1864. So held that a person who, during the war of the Rebellion, availed himself of a flag of truce to enter our lines for an illegal purpose, was in no degree protected by the flag from liability to arrest upon his purpose becoming apparent, or from amenability to trial and punishment for any overt act in violation of the laws of war. XIX, 673, July, 1866.

Williams v. Bruffy, 6 Otto, 176, 187.

"See Instructions relative to the dispatch and reception of Flags of Truce, prepared in the Judge-Advocate General's Office, published in G. O, 43, A. G. O., 1893.

FOREIGN SERVICE.

1375. In the absence of express authority from Congress, an officer of the army cannot accept remuneration from a foreign power in return for military or other public service rendered, without a violation of Art. I, Sec..9, par. 8, of the Constitution. Nor can such an officer (in the absence of such authority) properly be granted a leave of absence for the purpose of rendering foreign service, even without compensation, since such a proceeding would be contrary to the spirit and intent of the laws relating to the army which clearly contemplate that the services of its officers shall be rendered to the United States.' XXXVII, 448, April, 1876.

FORFEITURE BY OPERATION OF LAW.

1376. The forfeitures of pay, &c., incurred by deserters under army regulations (see DESERTION), need not be adjudged in the sentence imposed upon the offender. Such forfeitures attach by operation of law independently of conviction or sentence, and any reference to the same in the sentence by the court must be surplusage. VII, 207, February, 1864; L, 421, June, 1886; 49, 150, September, 1891; Card 4937, September, 1898.

1377. A forfeiture by operation of law cannot be the subject of remission. XXXII, 390, March, 1872. An amount duly forfeited by desertion under army regulations, when paid into the Treasury, cannot be withdrawn except by the authority of Congress. XXXVIII, 618, June, 1877.

1378. A soldier sentenced to dishonorable discharge only, being discharged by way of punishment for an offence, forfeits his travel pay under Sec. 1290, Rev. Sts., by operation of law, and any retained pay due him would, under Sec. 1281, Rev. Sts., as construed by par. 1269, A. R. (1895), be likewise forfeited. Card 3608, November, 1897.

FORFEITURE BY SENTENCE.

1379. A court martial, in forfeiting pay by sentence, should so fix the amount to be forfeited that the same will clearly and unmistakably appear from the sentence itself without a reference to any order or

Note in this connection the opinion of the Attorney General, in 15 Opins., 187, to the effect that the Centennial Commissioners appointed by the President under the act of March 3, 1871, were officers of the United States, holding offices of trust, (though, in the absence of salary, not of profit,) and that therefore, in view of the prohibition of Art. I, Sec. 9 par. 8 of the Constitution, they could not, without the authority of Congress, legally accept presents from a foreign government. 'See U. S. v. Landers, 2 Otto, 77, 79; 13 Opins. At. Gen., 188, 199.