(9 How., 560,) that Congress, in the proper exercise of its authority, may punish the same act as an offence against the United States." (Moore v. People of Illinois, 14 How. 13, 20, Dec. Term, 1852. See also: Coleman v. Tennessee, 97 U.S. 509, 518, Oct. Term, 1878; Cross v. North Carolina, 132 U.S. 131, 139-140, Nov. 11, 1889; United States v. Barnhart, 22 F. 285, Dec. 8, 1884.)

"Assault and battery, and homicide, are violations of the municipal laws of the place where committed, to be tried and punished by the proper tribunal of the State or Territory whose peace was broken and laws offended. But the same acts being done by an officer or soldier of the Army of the United States, over and above the breach of the local law, is a breach, also, of the law of the United States, a violation of the rules and articles for the government of the Army of the United States. So, if any officer or soldier of the Army of the United States shall assault and beat his superior officer while in the execution of his office, a double offence is thereby committed, the one against the local law of the State wherein the crime of assult, battery, and breach of the peace was committed, and punishable by that law with fine and imprisonment; the other against the United States, in violation of the rules and articles for the government of the Army, and by that law punishable by 'death or such other punishment as shall, according to the nature of the case, be inflicted upon him by the sentence of a court martial.' In case, the offender is punishable both as a citizen, subject to the municipal law of the place, and also as a soldier, or officer, subject to the military law of the United States." (6 Op. Atty. Gen. 506, 511, June 5, 1854.)

"Even, therefore, if the authorities of Connecticut had seen fit to try this man for manslaughter, which they might probably have done, it would not have ousted the court-martial of jurisdiction of the same offense so far as it affected the order and discipline of the ship. The offense in the one case, punished by the civil authorities, would be an offense against the public peace; in the other it would be an offense against the order and discipline of the Navy." (16 Op. Atty. Gen. 578, 580-581, Nov. 15, 1880.)

"The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the Federal Government, Barron v. Baltimore, 7 Pet. 243, and the double jeopardy therein forbidden is a second prosecution under authority of the Federal Government after a first trial for the same offense under the same authority. Here the same act was an offense against the State of Washington, because a violation of its law, and also an offense against the United States under the National Prohibition Act. The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that State is not a conviction of the different offense against the United States and so is not double jeopardy. (United States v. Lanza, 260 U.S. 377, 382, Dec. 11, 1922. Accord: Hebert v. Louisiana, 272 U.S. 312, 314, Nov. 1, 1926.)

"The Government of the United States and the governments of the several states in the exercise of their respective powers move on different lines. The Government of the United States has 'no power, except such as expressly or by necessary implication has been granted to it, while the several States may exert such powers as are not inconsistent with. the Constitution of the United States nor with a republican form of government and which have

not been surrendered by them to the General Government. An offense against the United States can only be punished under its authority and in the tribunals created by its laws; whereas, an offense against a State can be punished only by its authority and in its tribunals. The same act, as held in Moore's case, may constitute two offenses, one against the United States and the other against a State." (Grafton v. United States, 206 U.S. 333,

354, May 27, 1907.)

A member of the Fleet Naval Reserve, who has been convicted of a felony in a court of a State, is subject to trial by a naval court martial and sentence to discharge from the Fleet Naval Reserve for the acts which formed the basis for his conviction in the court of the State. (File MM-Deimling, John J./P19-1(291127), Dec. 10, 1929, C.M.0. 121929, p. 12.)

"Generally, where an officer or man is tried by a naval court martial for particular acts, such trial would be a bar to further trial in a Federal court of the United States for the reason that such courts and naval courts martial are Federal agencies. However, since the Fifth Amendment to the Constitution of the United States applies only to the Federal Government, trial by court martial would not necessarily constitute former jeopardy. so as to prevent trial in a State court where violations of certain state laws may have been involved. Some States have enacted laws making trials by Federal courts and Federal courts martial the basis for a plea of former jeopardy, but this is not a general provision in the laws of the various States. (File SO 121933, Mar. 9, 1943, C. M. 0. 1-1943, p. 52. See also File JAG: D: CP, Aug. 2 and 24, 1943, C.M. O. 3-1943, pp. 39-40.)

Acts which violate military and civil laws of the United States.-- "The military law, as it exists in the United States, and in Great Britain, from which country the substance of our jurisprudence was derived, is an exceptional code, applicable to a class of persons in given relations, but not abrogating or derogating from the general law of the land. By the general doctrine of American as well as of British law, an officer or soldier of the Army, who does an act which is criminal both by the military and by the general law, is subject to trial by the latter, in preference to the former, under certain conditions and limitations." (6 Op. Atty. Gen. 413, 414-415, Apr. 7, 1854.)

"For the civil responsibilities of an officer or soldier do not impair his military ones. The obligations are not reciprocally exclusive, but collateral and cumulative. An officer of the Army is bound by the law to be a good citizen, and therefore liable, under such qualifications as the law prescribes, to the same punishment with any other citizen for a given act. But he is also bound by the law to be a gentleman, and an officer, whether in or under command; and if he fail in this, whether the act in which he fail is punishable or not, or punished or not, by the civil magistrate, it is to

"The subject of the civil responsibility of the army was very carefully considered by Attorney General Cushing, in Steiner's Case, 6 Ops. Atty. Gen. 413, and the conclusion reached that an act criminal both by military and general law is subject to be tried either by a military or civil court, and that a conviction or acquittal by the civil authorities of the offense against the general law does not discharge from responsibility for the military offense involved in the same facts. The converse of this proposition is equally true." (United States v. Clark, 31 F. 710, 712, Aug. 1, 1887.1

"The Constitution of the United States contains an absolute guaranty that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb. ' Amendments, art. 5. This record, however does not present a case to which that clause of the Constitution is applicable. In the interpretation of the Constitution, and in enforcing its provisions, strict attention must be given to the accurate meaning of the words of this supreme law; and in this connection it is to be observed that the words 'same offense', found in this clause of the Constitution are not synonymous with the words 'same act,' and, since more than one offense may be actually committed by a single act, the Constitution does not shield the perpetrator from punishment for other offenses when he has been convicted or acquitted of one, although it does exempt him from a second prosecution for that identical offense. The sixty-second article of war, upon which the second prosecution is founded, excludes capital crimes, and from the record it is manifest that when the petitioner was arraigned before the court-martial special care was taken to charge him with an offense different from the one of which he was acquitted by the superior court. Although the same act is specified, the gist of the offense charged is unsoldierly conduct by a soldier, subversive of military discipline. For that offense the petitioner continued to be amenable to military law, notwithstanding the verdict of the jury declaring him to be innocent of the alleged violation of the laws of the state." (In re Stubbs, 133 F. 1012, 1013-1014, Jan. 3, 1905.)

put in jeopardy within the meaning of the Fifth Amendment. (United States v. Peres, 9 heat. 579, Feb. Term, 1824.)

"In the present case

the ground for the habeas corpus was, not the invalidity of an act of Congress under which the defendant was indicted, but a second prosecution and trial for the same offence, contrary to an express provision of the Constitution. In other words, a constitutional immunity of the defendant was violated by the second trial and judgment. It is difficult to see why a conviction and punishment under an unconstitutional law is more violative of a person's constitutional rights, than an unconstitutional conviction and punishment under a valid law.. In the first case, it is true, the court has no authority to take cognizance of the case; but, in the other, it has no authority to render judgment against the defendant." (Hans Neilsen, Petitioner, 131 U. S. 176, 183-184, May 13, 1889.)

"The Constitution of the United States, in the Fifth Amendment, declares, 'nor shall any person be subject to be twice put in jeopardy of life or limb. The prohibition is not against being twice punished, but against being twice put in jeopardy, and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial. An acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offence." (United States v. Ball, 163 U.S. 662, 669, May 25, 1896.)

"It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment be entered on the verdict, and it was found upon a defective indictment. The protection is not *** against the peril of second punishment, but against being again tried for the same offense." (Kepner v. United States, 195 U. S. 100, 130, May 31, 1904.)

"Although the accused was *** placed in jeopardy upon the first trial, in regard, not only to the offense of which he was accused, but also in regard to the lesser grades of that offense, yet by his own act and consent, by appealing to the higher court to obtain a reversal of the judgment, he has thereby procured it to be set aside, and when so set aside and reversed the judgment is held as though it had never been." (Trono v. United States, 199 U.S. 521, 532, Dec. 4, 1905. Accord: Stroud v. United States, 251 U.S. 15, 18, Nov. 24, 1919; Pratt v. United States, 102 F.2d 275, 279, Feb. 20, 1939. See also 1 Op. Atty. Gen. 233, 240, Sept. 14, 1818.)

"Congress, by express constitutional provision, has the power to prescribe rules for the government and regulation of the Army, but those rules must be interpreted in connection with the prohibition against a man's being put twice in jeopardy for the same offense. The former provision must not be so interpreted as to nullify the latter. If, therefore, a person be tried for an offense in a tribunal deriving its jurisdiction and authority from the United States and is acquitted or convicted, he cannot again be tried for the same offense in another tribunal deriving its jurisdiction and authority from the United States. " (Grafton v. United States, 206 U. S. 333, 352, May 27, 1907.)

"It thus appears to be settled that the civil tribunals cannot disregard the judgments of a general court-martial against an accused officer or soldier, if such court had jurisdiction to try the

offense set forth in the charge and specifications; this, notwithstanding the civil court, if it had first taken hold of the case, might have tried the accused for the same offense or even one of higher grade arising out of the same facts." (Grafton v. United States, supra, at 348.)

It

"We assume as indisputable, on principle and authority, that before a person can be said to have been put in jeopardy of life or limb the court in which he was acquitted or convicted must have had jurisdiction to try him for the offense charged. is alike indisputable that if a court-martial has jurisdiction to try an officer or soldier for a crime, its judgment will be accorded the finality and conclusiveness as to the issues involved which attend the judgments of a civil court in a case of which it may legally take cognizance. (Grafton v. United States, supra, at 345.)

"As to the contention of double jeopardy upon which the petition of habeas corpus is rested in this case, this court has settled that the test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statutes." (Morgan, Warden, etc. v. Devine, 237 U. S. 632, 641, June 1, 1915.) See also: Burton v. United States, 202 U.S. 344, 378-381, May 21, 1906; Albrecht v. United States, 273 U.S. 1, 11-12, Jan. 3, 1927; Vamvas v. United States, 13 F.2d 347, 348, May 14, 1926; Sims v. Rives, 84 F.2d 871, 875-877, May 11, 1936, cert. den., 298 U.S. 682; Ross v. United States, 103 F.2d 600, 602-604, Apr. 14, 1939; Gilmore v. United States, 124 F.2d 537, 539, Jan. 2, 1942; District of Columbia v. Buckley, 128 F.2d 17, 19, Mar. 30. 1942, cert. den., 317 U.S. 658.)

"It is well settled that an acquittal or conviction in a state court is not a good defense in this court; but the rule is different where both courts derive their powers from the same sovereignty. In this case the court-martial and the District Court of the United States sitting in this district both derive their powers from the government of the United States. " (United States v. Block, 262 F. 205, 209, Jan. 10, 1920.)

"A proceeding, to constitute a proper basis for a claim of former jeopardy, must be valid. If the proceedings are lacking in any fundamental prerequisite which renders the judgment void, they will not constitute a proper basis for a claim of former jeopardy." (McCleary v. Hudspeth, 124 F. 445, 447, Dec. 24, 1941.)

Plea of former jeopardy in trial by court martial. "We have no doubt that the provision of the Fifth Amendment, 'nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb', is applicable to courts martial. The immediately preceding exception of 'cases arising in the land or naval forces' from the requirement of an indictment, abundantly shows that such cases were in contemplation but not excepted from the other provisions." (Sanford v. Robbins, 115 F.2d 435, 438, Nov. 15, 1940. See also: 9 Op. Atty. Gen. 223, 230, Oct. 15, 1858; File 26262-5117, C. M. O. 1411918, p. 17; File 26251-27573-3, Oct. 4, 1921, C. M. 0. 10-1921, p. 11; File CL5/A17-24 (290827), Sept. 5, 1929, C. M. O. 9-1929, p. 25.)

A private reprimand, administered by the commander in chief of a fleet to a naval officer in accordance with the recommendation of a court of inquiry, as a punishment for an offense, such a neglect of duty, is no bar to a subsequent trial of

such officer by general court-martial for the same offense. (25 Op. Atty. Gen. 623, June 15, 1906.)

The proceedings of a board of inquest or of a court of inquiry are in no sense a trial of an issue or of an accused person. They perform no real judicial function, but are convened only for the purpose of informing the Navy Department in a preliminary way as to the facts involved in the inquiry. (25 Op. Atty. Gen. 623, June 15, 1906. See also parte Joly, 290 F. 858, Aug. 28, 1902.)

"The jeopardy of the law means a real peril, originally of life or limb, and always of substantial punishment or penalty. The provision of the Constitution is (Fifth Amendment): 'Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. Another fundamental idea is that there must be a trial upon an indictment for an offense, or upon some equivalent charge and presentment, as by court-martial, submitting a definite issue and involving conviction or acquittal. The person must be in danger of condemnation; a mere inquiry or other informal proceeding (informal in a judicial sense), ending in a reprimand, does not satisfy either element of the principle of second jeopardy. Of course, if there is a trial in some form, which might result in conviction and punishment, the jeopardy is none the less complete and valid as a bar to another trial because, in fact, it issues in a simple, rebuke; for absolute acquittal, if the peril is real, is equally a bar. These views indicate the logic underlying the old common-law pleas of autrefois convict and autrefois acquit." (25 Op. Atty. Gen. 623, 624-625, June 15, 1906.)

While the disapproval by the Secretary of the Navy, on his own motion, of the proceedings, findings and sentence of a court-martial is tantamount to an acquittal, he may order a new trial on the motion of the accused, in which case his disapproval of the proceedings, findings and sentence does not have the effect of an acquittal, barring a second trial by court-martial. (Ex parte Costello, 8 F.2d 386, Apr. 2, 1925. See also File 26251-33357A, Feb. 5, 1925.)

Proceedings before a legally incompetent court do not constitute former jeopardy. (3 Op. Atty. Gen. 396, Dec. 24, 1838. Accord: File 26251-35162A, Oct. 1, 1925, C. M. O. 10-1925, p. 7; File MM-***/A1720 (260921) A, Oct. 25, 1926, C.M.O. 11-1926, p. 4; File MM-D/A17-20 (261206) A, Jan. 7, 1927, C. M. O. 11927, p. 4; File MM-S/A17-20 (261206) A, Jan. 7, 1927, C. M. O. 2-1927, pp. 5-6; File MM-Stout, John Jos/A1721(300611), June 11, 1930, C. M. O. 6-1930, p. 12; File MM-Geer, Fred/A17-21(300820), Aug. 20, 1930, C. M. O. 8-1930, p. 12; File MM-Worthington, Walter C/A17-21(300825), Aug. 30, 1930, C. M. O. 8-1930, p. 15; File MM-Wigen, Henry B/A17-22 (310527), May 27, 1931, C. M. O. 5-1931, p. 18; File MM-Groat, Howard K/A17-22(310627), June 27, 1931, C. M. O. 6-1931, p. 13; File MM-Matulavich, Sam/A17-21(310627), June 27, 1931, C.M.O. 6-1931, p. 14; File MM-Hahn, Carroll E/A17-21(310923), Sept. 23, 1931, C.M.O. 91931, p. 22; File MM-Mullins, Chas. R/A17-21(320928), Sept. 28, 1932, C.M.0. 9-1932, p. 11; File MMPinczewski, Edward S/A17-22 (370911), Sept. 11 and 28, 1937, C. M. 0. 9-1937, p. 9; File MM-Hart, Thomas D/A17-20 (410102), Feb. 26 and Mar. 11, 1941, C. M. O. 1-1941, p. 172.)

A conviction upon a fatally defective specification does not constitute former jeopardy. (File MM-McDaniel, P A/A17-21 (260911), Nov. 24, 1926. Accord: File MM-Eisert, Elmer A/A17-22 (311116), Nov. 16, 1931, C. M. O. 11-1931, p. 6; File MM-Cavanaugh,

"But the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof. Moreover, we need not consider how far a court would go in compelling a man to exhibit himself. For when he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is competent. (Holt v. United States, 218 U. S. 245, 252253, Oct. 31, 1910.)

11

"It is undoubted that the constitutional guarantee of the Fifth Amendment does not deprive the law-making authority of the power to compel the giving of testimony even although the testimony when given might serve to incriminate the one testifying, provided immunity be accorded, the immunity, of course, being required to be complete; that is to say, in all respects commensurate with the protection guaranteed by the constitutional limitation." (Glickstein v. United States, 222 U. S. 139, 141, Dec. 4, 1911. See also: Counselman v. Hitchcock, supra, at 585-586; Brown v. Walker, supra, at 593-597; Heike v. United States, 227 U. S. 131, 142, Jan. 27, 1913; United States v. Armour & Co. et al., 142 F. 808, Mar. 21, 1906.)

-

-

"It is to be borne in mind that the power of the President under the Constitution to grant pardons and the right of a witness must be kept in accommodation. Both have sanction in the Constitution, and it should, therefore, be the anxiety of the law to preserve both, to leave to each its proper place. In this as in other conflicts between personal rights and the powers of government, technical even nice distinctions are proper to be regarded. Granting then that the pardon was legally issued and was sufficient for immunity, it was Burdick's right to refuse it, as we have seen, and it, therefore, not becoming effective, his right under the Constitution to decline to testify remained to be asserted; and the reasons for his action were personal." (Burdick v. United States, 236 U. S. 79, 93-94, Jan. 25, 1915.)

The Fifth Amendment does not relieve a witness from answering merely on his own declaration or judgment that an answer might incriminate him; whether he must answer is determinable by the trial court in the exercise of its sound discretion; and unless there is reasonable ground, as distinct from a remote or speculative possibility, to apprehend that a direct answer may prove dangerous to the witness, his answer should be compelled. (Mason v. United States, 244 U. S. 362, June 4, 1917. See also United States v. Thomas, 49 F. Supp. 547, 550, Apr. 7. 1943.)

"The great weight of authority, as well as a due regard for the right of the community to have the wheels of justice unclogged, as far as may be consistent with the liberty of the individual, leads us to reject the doctrine that a witness may avoid answering any question by the mere statement that the answer would criminate him, however unreasonable such statement may be. The true rule is that it is for the judge before whom the question arises to decide whether an answer to the question put may reasonably have a tendency to criminate the witness, or to furnish proof of a link in the chain of evidence necessary to convict him of a crime. It is impossible to conceive of a question which might not elicit a fact useful as a link in proving some supposable crime against a witness. The mere statement of his name or of his place of residence might

identify him as a felon, but it is not enough that the answer to the question may furnish evidence out of the witness' mouth of a fact which, upon some imaginary hypothesis, would be the one link wanting in the chain of proof against him of a crime. It must appear to the court, from the character of the question, and the other facts adduced in the case, that there is some tangible and substantial probability that the answer of the witness may help to convict him of a crime. " (Ex parte Irvine, 74 F. 954, 960, Apr. 7, 1896. See also: In re Willie, 25 Fed. Cas. 38, No. 14, 692e, June 18, 1807; United States v. Miller, 26 Fed. Cas. 1254, No. 15, 772, Oct. Term, 1821; United States v. McCarthy, 18 F. 87, Sept. 7, 1883; In re Kanter, 117 F. 356, Sept. 15, 1902; In re Levin, 131 F. 388, Feb., 1904; United States v. Lumber Products Ass'n, 42 F. Supp. 910, Jan. 14, 1942.)

"It is well settled that, when properly invoked, the Fifth Amendment protects every person from incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment." (Agnello v. United States, 269 U. S. 20, 33-34, Oct. 12, 1925. See also: Marron v. United States, 275 U.S. 192, 194, Nov. 21, 1927; Price v. Johnston, 125 F.2d 806, 808-809, Feb. 11, 1942.)

To justify under the Fifth Amendment a refusal to give information in an investigation under a federal law in respect of a federal matter, the privilege from self-incrimination must be claimed at the time when the information is sought and refused and must be invoked as a protection against prosecution by the Federal Government; danger and claim that disclosure may lead to prosecution by a State is not enough. (United States v. Murdock, 284 U. S. 141, Nov. 23, 1931. Accord: Miller v. United States, 95 F.2d 492, Mar. 22, 1938; Graham v. United States, 99 F.2d 746, Oct. 28, 1938; United States v. St. Pierre, 128 F.2d 979, June 24, 1942.)

"The Fifth Amendment declares that 'No person . . . shall be compelled in any criminal case to be a witness against himself.' *** The Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been 'compelled' within the meaning of the Amendment." (United States v. Monia, 317 U. S. 424, 427, Jan. 11, 1943. See also: United States v. Murdock, supra, at 148; Edwards v. United States, 131 F. 2d 198, 199-200, Oct. 26, 1942, cert. den., 317 U. S. 689; United States v. Mary Helen Coal Corporation, 24 F. Supp. 50-51, June 6, 1938; 17 Op. Atty. Gen. 615, 618, Oct. 27, 1883.)

The Fifth Amendment does not forbid the use in evidence against a defendant in a criminal case in a federal court of self-incriminating testimony theretofore compelled--under a state immunity statute and without participation by federal officers --in proceedings in a state court. (Feldman v. United States, 322 U. S. 487, May 29, 1944.)

"The constitutional privilege against selfincrimination is essentially a personal one, applying only to natural individuals. It grows out of the high sentiment and regard of our jurisprudence for conducting criminal trials and investigatory proceedings upon a plane of dignity, humanity and impartiality. It is designed to prevent the use of legal process to force from the lips of the accused individual the evidence necessary to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him. Physical torture and other less violent but equally