And the Court does therefore sentence him, Lieutenant X. Y, of the Regiment of Infantry, to be cashiered. G. D. R., Lieut. Col. of Ordnance, President. H. E. M. Captain 10th Infantry, Judge Advocate. There being no further business before the Court, it adjourned sine die. H. E. M., Captain 10th Infantry, Judge Advocate. THE VERDICT. 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 HEADQUARTERS, DEPARTMENT OF THE GULF, New Orleans, October 13, 1863. No. 74. 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: OFFICIAL: G. NORMAN LIEBER, Acting Assistant Adjutant General. Acting Assistant Adjutant General. GENERAL ORDERS No. 75. HEADQUARTERS, DEPARTMENT OF THE GULF, Colonel E. G. Beckwith, commanding Defences of New Orleans, will detail such number of officers from the Convalescent Camp of the 13th Army Corps as may be necessary for duty in the Provost Marshal's Department, and will relieve Captains Page and Wolling, and, if necessary, any other officers now on duty in the Department, and order them to rejoin their regiments. To enable Captains Killborn and Tisdale to devote their entire time to the important duties entrusted to them, of raising troops, Colonel Beckwith will relieve them from duty in the Provost Marshal's Department as speedily as possible. Officers doing duty in the Provost Marshal General's Department, or under the Provost Marshal of the State of Louisiana, at any military post or in any military district in the Department of the Gulf, are not in any sense independent authorities, but are aids to the respective military commanders of such districts and posts, and are subject to their orders, supervision and control, in a manner analogous to that of officers in any one of the Staff Departments proper of the army. Especially is this the case in the matter of granting permits for vessels to proceed to and touch at any except military posts, and to ship the products of the country to market from points heretofore designated in General Orders; but, above all, no Provost Marshal will presume to give a pass for any person or thing to pass beyond our military lines. Commanders of troops are responsible for whatever or whoever passes their lines, and none but superior military authority (no matter by what branch of the Government it may be claimed) can relieve them from this responsibility; and they, and the Provost Marshal General, alone, will be permitted to exercise this authority, under the orders now in existence, and any instructions that may be hereafter given by the Commanding General. All permits granted prior to July 23d, 1863, to keep arms in the parishes of Orleans and Jefferson, are hereby revoked, and such permits will hereafter be granted only by the Provost Marshal General. BY COMMAND OF MAJOR GENERAL BANKS: OFFICIAL: G. NORMAN LIEBER, Acting Assistant Adjutant General. Acting Assistant Adjutant General. |