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ment and lie out of camp, without the permission of his commanding officer. This at, etc., on or about the night of the 16th of October, 1862."

MODE OF RECORDING THE PROCEEDINGS OF A COURT MARTIAL. Proceedings of a General Court Martial wbich convened at West Point, by virtue of the following Special Order. [Here insert a copy of the order.]

West Point, N. Y., March 5th, 186 -. 10 A, M. The Court met pursuant to the foregoing order. Present,

Absent,

The Judge Advocate read a communication from Captain C., stating the cause of his absence, etc.; the letter is appended and marked--.

“ The cause of Captain B.'s absence not known.” The Court then proceeded to the trial of Lieutenant X. Y., — Regiment of Infantry, who was called before the Court, and having heard the order appointing the Court read, was asked if he had any objection to any member named in the order. The accused objected to Captain , and stated the cause of his challenge, as follows:

[Here insert the statement.].

Captain — remarked, etc. The Court was cleared, the challenged member retiring ; and after due deliberation the doors were opened, the accused and challenged parties present, and the decision of the Court was announced by the Judge Advocate, “ That the challenge is sustained as sufficient, and that Captain - is excused from serving as a member of the Court."

The accused having no objections to any of the other members, the Court was then duly sworn by the Judge Advocate, and the Judge Advocate by the President, in the presence of the prisoner.

The accused appealed to the Court, to be permitted to introduce M. N., Esq., as his counsel, which application was granted, and he appeared as counsel for the accused.

The accused, Lieutenant X. Y., - Regiment of Infantry, was arraigned on the following charge and specification :

Charge-Drunkenness on duty.

Specification--In this, that he, Lieutenant X. Y., of the --- Regiment of Infantry, was drunk while on duty at company drill. All tbis at ,on or about the 10th day of January, 186--

To which charge and specification the accused pleaded as follows:
To the specification ----Not Guilty."
To the charge---- Not Guilty.”
Captain 0. P., 5th Artillery, a witness for the prosecution, was duly sworn.
Question by Judge Advocate.
Answer.
Question by Judge Advocate.
Answer.
Question by defense.
Answer.
Question by defense.
Answer.
Question by Judge Advocate.
Answer, etc.
The prosecution here closed.
Lieutenant R. S., 7th Infantry, a witness for the defense, was duly sworn.
Question by defense.
Answer.
Question by Judge Advocate.
Answer.
Question by the defense.
Answer.
Question by the Court.
Answer, etc.

The accused having no further testimony to offer, requested until to-morrow to prepare his final defense. The Court granted his request, and adjourned to meet again at 10 o'clock, A. M., to-morrow, the 6th inst.

H. E. M., Captain 10th Infantry, Judge Advocate.

West Point, N. Y., March 6th, 186--, 10 A. M. The Court met pursuant to adjournment.

Present the same members as yesterday, the Judge Advocate, and the counsel for the accused.

The proceedings of yesterday having been read by the Judge Advocate, the accused, Lieutenant X. Y., presented the written address, (appended and marked - )which was read by his counsel in his defense.

The Judge Advocate submitted the case to the Court without remark.

The Court was then cleared for deliberation, and having maturely considered the evidence adduced, finds the accused, Lieutenant X. Y., of the — Regiment of Infantry as follows :

Of the specification--"Guilty. . . .
Of the charge---- Guilty.”

And the Court does therefore sentence him, Lieutenant X. Y , of the — Regiment of Infantry, to be cashiered.

G. D. R., Lient. Col. of Ordnance, President.
H. E. M. Captain 10th Infantry, Judge Advocate.
There being no further business before the Court, it adjourned sine die.

G. D. R. Lieut. Col. of Ordnance, President.
H. E. M., Captain 10th Infantry, Judge Advocate.

THE VERTICT. Benét, p. 129, et seq.----• Instead of a general verdict of guilt or acquittal upon the whole of every specification, the Court may find a special verdict--that is, the accused be found guilty of a portion of the specification, and not guilty of the remainder ; or may find him guilty of the facts set forth in the specification, but attach no criminality thereto; or may find him guilty of a portion, and find the facts as stated in the remainder, but declare them void of criminality. The prisoner must, however, be acquitted or convicted of every part of each of the several specifications and charges of which he stands accused, and the decision of the court in all their findings must be specific, so that the quantum of punishment inflicted may be seen to be proportionate to the degree of guilt.

The accused may be found guilty of the entire facts set forth in the specifica. tions, and yet be acquitted of the charge. This may happen in constructive charges, when the essence of the charge and the guilt of the prisoner rests on imputations built on facts alleged in the specifications—as that there was a criminal knowledge or intent-but of which he has been cleared by the testimony.

* * * It is not necessary, in military charges, to allege that the acts were done. maliciously,' or wilfully,' or “knowingly. A specification of fact is good without such expressions. But if they are alleged and negatived by the court in their verdict, then the inference from the fact fails, and the accused being acquitted of the intention, is acquitted of the offense.

* * * Although it be settled that a prisoner cannot be convicted of an offense different from that with which he is charged, it is equally well established that a court martial can convict of a lesser degree of the same offenee alleged against him. It is therefore necessary to note the distinctions, if any, between the crime charged and the actual degree of offense proved. A prisoner may be acquitted of the charge of desertion, but be convicted of the lesser offense of absence without leave. Although these two offenses are to be found in two distinct Articles of War, yet desertion is but an aggravated degree of the crime of absence without leave, and necessarily includes it; the intention not to return constituting the aggravation. * *

While the court may convict of a lesser kindred offense, it cannot, under any circumstances, find the accused guilty of a higher degree of criminality than that alleged in the charge.

The various degrees of culpability must be taken into consideration for every act that may be divided into offenses of greater or less magnitude, and the court should confine themselves to the evidence of the crime specified, when deliberating upon the question of guilt or innocence. Any evidence in mere palliation or extenuation must be allowed its due effect upon the sentence, and not upon the finding. A soldier striking his superior officer, being in the execution of his office, must be found guilty of a violation of the 9th Article of War-mutiny-and the extenuating circumstance that he struck under the wild excitement of excessive provocation can only be considered when deciding upon the sentence.

THE SENTENCE. The sentence must be clearly expressed, must be in accordance with the finding, and where the mode of punishment is laid down by law, the law must be strictly followed ; otherwise it must be determined by the custom of war in like cases."

BY COMMAND OF MAJOR GENERAL BANKS :

G. NORMAN LIEBER,

Judge Advocate.

GENERAL ORDERS)

No. 74.

HEADQUARTERS, DEPARTMENT OF THE GULF,

Nero Orleans, October 13, 1863.

Colonel CHARLES C. Dwight, 160th New York Volunteers, is relieved from duty as Judge of the Provost Court of the Department of the Gulf, established by General Orders Nos. 45 and 52, current series, from these Headquarters, and will rejoin his regiment.

A. A. Atocha, Esquire, is relieved from duty as Judge Advocate, and is appointed Judge of the Provost Court.

BY COMMAND OF MAJOR GENERAL BANKS :

G. NORMAN LIEBER, Acting Assistant Adjutant General.

OFFICIAL:

Acting Assistant Adjutant Generat.

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