1966. Where a hospital steward absent on furlough was, in an emergency, summarily ordered to his station for duty, pending the furlough, held that he was entitled to be reimbursed (out of the appropriation for transportation of the army) his proper transportation expenses, on his producing due evidence of the same, viz., the receipts of the persons to whom the amounts were paid, or, in their absence, his own itemized sworn statement. 56, 269, November, 1892. 1967. Where a soldier was taken into the custody of the U. S. civil authorities on a criminal charge, and was brought to trial in a U. S. court and acquitted, held that a reimbursement of the expenses of his transportation and subsistence in returning to his military station could not legally be made him out of any appropriation applicable to the payment of such expenses in the army, but were proper for reimbursement by the Department of Justice. 57, 277, January, 1893.

1968. The act of July 29, 1886, in authorizing the enlistment of a body of men "for clerical service and messenger duty", provides that they shall be paid a certain fixed compensation, and “shall receive no other compensation, pay, or allowance" (except, under special circumstances, one ration in kind, for subsistence). Held that they were entitled, like other enlisted men, to medical treatment and attendance at the posts at which they were serving, such not being an "allowance", in the sense of being an element of compensation, as that term has been defined by the authorities. LI, 613, March, 1887.

1969. An enlisted man, confined in arrest under charges and awaiting trial, was temporarily released to act as company cook, and did so act for one month. The status of arrest does not affect a soldier's right to the pay and allowances receivable from the United States, much less could it affect his right to an allowance payable out of the company fund. Held therefore that this man was entitled to the allowance for services as cook, made payable by par. 303, A. R. (1889), as amended by G. O. 13 of 1892. And held that a sentence adjudged this soldier, before the above allowance was rendered to him, by which was forfeited a portion of his monthly pay for three months, did not affect a compensation which was no part whatever of his pay. 58, 101, February, 1893.

PAYMASTER'S CLERK.

1970. A paymaster's clerk is a civilian (see Sec. 1190, Rev. Sts.), and no part of the army. Unless actually serving with an army in the field in time of war, and thus within the class of persons indicated by the 63d Article of War, he is not amenable to military discipline or the

1 U. S. v. Landers, 92 U. S., 77; Sherburne v. U. S., 16 Ct. Cls., 491.

jurisdiction of a court martial.' III, 269, August, 1863; Card 7424, December, 1899.

1971. Held that Sec. 1190, Rev. Sts., providing for the allowance of clerks for paymasters, did not authorize the continuance of the employment of such a clerk for a paymaster after he had become retired. The statute refers only to paymasters in active service. LIII, 265, April, 1887.

PAYMENT.

2

1972. In the absence of any usage, or course of dealing between the parties, or special direction by the creditor or person to whom the remittance is made, authorizing such a mode of transmission, the sending by mail to a party, of money due him, is at the risk of the party remitting; and, if the money is lost in transitu, such a sending does not amount to a legal payment or discharge of the debt. So, where an officer, having in his possession certain company funds, due and payable to another officer stationed at another post, transmitted the amount in a communication by mail, without any request or authority from the latter so to forward the same, and the sum remitted, or a part of it, was lost en route; held that the loss must be borne by the officer sending the money. XXVI, 274, December, 1867. Similarly held, where a superior officer attempted to transmit to an inferior officer under his command, without any request or authority from him to so transmit the same, certain pay due the latter, in the form of a check payable to bearer, enclosed in a letter, which was lost or stolen in transitu. XXI, 112, December, 1865.

PENALTY ENVELOPE.

1973. Held that the words, "penalty for private use-$300," printed upon an official envelope, constituted a sufficient "statement" under the act of July 5th, 1884, c. 234, s. 3, which provides simply that the envelopes shall "bear a statement of the penalty for their misuse." 60, 425, July, 1893.

1974. If the matter of carrying on correspondence becomes the official duty of a public officer and he conducts it in the discharge of that official duty, he is entitled to use the penalty envelope; otherwise he would not be. Card 276, September, 1894

1 Paymasters' clerks in the navy occupy a different status. They wear a uniform, have a fixed rank, and are held by the U. S. courts to be a part of the navy and amenable at all times to trial by naval courts martial. See Ex parte Reed, 10 ̊Otto, 13; In re Bogart, 2 Sawyer, 396; United States v. Bogart, 3 Benedict, 257. But see Ex parte Van Vranken, 47 Fed. Rep. 888.

2 Gurney v. Howe, 9 Gray, 404; Boyd v. Reed, 6 Heisk., 631; Morton . Morris, 31 Ga., 378; Burr v. Sickles, 17 Ark., 428; Selman v. Dun, 10 West. L. J., 459; 2 Greenl. Ev. § 525; 1 Pars. Contr., 132.

1975. The law regarding the use of penalty envelopes (act of March 3, 1877, c. 103, s. 5 and 6, and the act of July 5, 1884, c. 234, s. 3) restricts the use of such envelopes, for the free transmission of enclosures, to "officers of the United States Government;" except that in the latter act it is provided "that any department or officer authorized to use penalty envelopes may enclose them, with return address, to any person or persons from or through whom official information is desired, the same to cover such official information and endorsements relating thereto." Held therefore that the authorities of a college, etc., where an officer of the army is on duty under Sec. 1225, Rev. Sts., are not authorized to initiate the use of the penalty envelope for the transmission of official papers pertaining to the military department thereof but may legally transmit the same to the proper department of the Government in penalty envelopes previously furnished to them by the department for the purpose. Card 729, December, 1894. 1976. Held that recruiting officers may legally use the penalty envelope for the transmission to private persons of circulars, letters, etc., giving information with regard to enlistment in the military service, and may also when verifying, by letter, an applicant's character, enclose a penalty envelope to cover the information sought. Card 1593, July, 1895.

1977. Held that penalty envelopes with return address could legally be sent from the office of the Commissary General of Subsistence to ex-officers of the military service, for use in transmitting answers to inquiries, propounded by that office to them in connection with pending claims of enlisted men who had been under their command, also to the same parties for use in furnishing that office at its request with information relating to claims of third persons for supplies furnished or services rendered to the United States, the information sought being official, inasmuch as it was to be called for by officers of the Government in connection with claims pending before them and not from the claimants themselves. Card 6236, April, 1899.

1978. When matters pertaining to the muster-in of United States volunteers “relate exclusively to the business of the Government of the United States," adjutants general of the respective States assisting in such muster-in may legally use the penalty envelope in their correspondence to the extent stated, but any person using it must decide for himself whether in the particular case it may legally be used, having in mind his criminal liability for a misuse thereof. Cards 4610, January, 1898; 6173, April, 1899; 7351, November, 1899.

1979. If official information is called for by the War Department respecting State militia, penalty envelopes may be furnished to cover the replies under the act of July 5, 1884, but this would not authorize

their use otherwise for the business of the militia with the general government. Card 6419, May, 1899.

1980. A penalty envelope or postal card with return address may legally be sent by a disbursing officer to a public creditor (a private person) to be used by the latter in acknowledging receipt of a check sent. Card 6236, April, 1899.

1981. Penalty envelopes cannot legally be used by retired enlisted men in sending to military posts for supplies for their use. Card 3415, August, 1897.

PERJURY.

1982. It is a well settled rule of the common law that to sustain the charge of perjury, the evidence of two witnesses or of one witness with strong corroborating circumstances is necessary to prove the falsity of what was testified. XII, 631, September, 1865.

1983. Under this charge, testimony which consists of answers to questions going to the credit of a particular witness, or of other witnesses whom he corroborated, is "material to the issue." 36, 359, November, 1889; 54, 316, July, 1892.

1984. Where the prosecution introduced but one witness to prove the falsity of the testimony under this charge, and that witness was contradicted as to a material point and the accused was convicted, advised, pending the execution of the sentence, that the unexecuted portion thereof be remitted on account of the failure of proof. LIII, 644, May, 1888.

1985. False swearing by an officer or enlisted man before a court martial, knowing the same to be false, whether or not as to matter material to the issue, is "conduct to the prejudice of good order and military discipline", and is cognizable and punishable as such under the general (62d) article.' 36, 359, November, 1889.

1986. "False swearing," as the term is used in the order prescribing maximum punishments, means, (1) taking a false oath in a military judicial proceeding as to a matter not material to the issue; (2) taking a false oath otherwise than in a judicial proceeding, before a person legally authorized to administer the oath and under circumstances affecting the interests of the military service. 46, 211, March, 1891.

1987. A recruit's declaration as to his age is no part of the oath prescribed by the 2d Article of War. There is no law of the United States which requires that such statement shall be under oath. Held, therefore, that when the statement is false the recruit is not indictable for perjury under Sec. 5392, Rev. Sts. 30, 176, February, 1889.

1 And in the case of an officer it is also chargeable as a violation of the 61st Article.

PLEA.

1988. It is a general rule of criminal law that where the accused pleads guilty, no testimony on the merits is to be introduced. But, on military trials, the court, even against the objection of the accused, may, in its discretion, call upon the judge-advocate to offer evidence, or approve of his doing so, in a case where such evidence is deemed to be essential to the due administration of military justice. An accused cannot be allowed, by pleading guilty, to shut out testimony where the interests of the service require its introduction. XXIX, 124, July, 1869. 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, February, 1865.

1989. 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. 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

'The principle that in cases in which the plea is guilty the court should take testimony, where necessary to the comprehending of the facts and the doing of justice, though apparently in a measure lost sight of at a later period, was clearly enunciated in early general orders of the War Department. Thus, in G. O. 23 of 1830, Maj. Gen. Macomb (commanding the Army) expresses himself as follows:-"In every case in which a prisoner pleads guilty, it is the duty of the court martial, notwithstanding, to receive and to report in its proceedings such evidence as may afford a full knowledge of the circumstances; it being essential that the facts and particulars should be known to those whose duty it is to report on the case, or who have discretion in carrying the sentence into effect." And see G. O. 21, of 1833, to a similar effect.

See now Court-Martial Manual (1901), pp. 31-33.