upon the court without injury to the service; or that the accused has not been placed in arrest. A court declining to go on with a trial upon any such ground may be peremptorily ordered by the convening authority to proceed: if it still refuses, the preferable course will ordinarily be to dissolve it in general orders (adding, if deemed desirable, an expression of censure on account of its contumacy), and to convene, for the trial, a court composed entirely of new members. XXI, 177, January, 1866; XXV, 578, May, 1868; XXVIII, 57, August, 1868.

997. A court martial has no authority over the person of an accused except when he is before it for trial. It cannot arrest him, or by its own order cause him to be brought to the place of trial; the compelling of his attendance before the court being a duty of the convening officer or post commander.' XXII, 606, February, 1867. XXXIX, 44, December, 1876. So, a court martial has, as such, no authority to arrest, or to require its judge-advocate or other officer to arrest, a witness suspected of false swearing upon a trial which has been had before it: in such a case its proper course is to report the facts to the convening authority for his action. III, 109, July, 1863.

998. Charges are regularly and properly referred to a court martial for trial by the officer who has constituted it (or his superior), and a court martial may in general properly decline to entertain charges otherwise submitted. The validity, however, of the proceedings or sentence of a court martial in any case will not be affected by the circumstance that the charges were in fact irregularly referred to it by a commander inferior to the convening officer and without having been approved by him. XXII, 502, December, 1866; XXVI, 167, November, 1867.

999. A court martial is not authorized, in its discretion and of its own motion, to reject or strike out a charge or specification formally referred to it for trial by competent authority, nor to direct or permit the judge-advocate to drop or withdraw such a charge or specification, or enter a nolle prosequi as to the same. For such action the authority of the convening commander is requisite. But where, by a special plea or objection, an issue is made by the accused as to the sufficiency of any pleading, the court, without referring the question to the convening officer, is empowered to allow the plea or objection and quash or strike out the charge, &c. XXIX, 370, October, 1869; 20, 378, November, 1887.

3

'See note to § 1000, post.

Compare G. C. M. O. 13, Dept. of the Missouri, 1877; do. 36, 79, Dept. of the Platte, 1877; do. 13, id., 1878; do. 41, id., 1880; do. 45, 48, Div. of Pacific and Dept. of Cal., 1880.

3

This paragraph sets forth the established practice in our service. It is now incorporated in the Court-Martial Manual (1901), p. 19, sec. v. As to the authority of the court to direct an amendment of a charge or specification, see note to § 720, ante.

pros

1000. When a court martial desires to have the benefit of the testimony of a party who has not been introduced as a witness by the ecution or defence, it may properly call upon the judge advocate to have such party summoned, or-if he is a military person-may apply to the convening authority or post commander to have him ordered before it to testify,' and it may adjourn the trial for a reasonable time to await his attendance. XXV, 578, May, 1868.

1001. In the interests of justice and for the purpose of fully informing itself of the facts, the court may, in its discretion, allow the introduction, by either side, of material testimony after the case has been formally closed. Such a proceeding, however, must be of course exceptional, and a party should not be permitted to offer testimony at this stage, unless he exhibits good reason for not having produced it at the usual and proper time. XII, 401, May, 1865; XVII, 398, October, 1865.

1002. In a case where-a plea of guilty having been interposed-the prosecution had closed and the accused had proceeded to present to the court a statement of defence, held that the court was authorized, in its discretion, to reopen the case and hear testimony relative to certain gross ill-treatment to which the accused in his statement had represented that he had been subjected, and which he claimed, had excused or extenuated his offence. XXXI, 35, November, 1870.

1003. A court martial, after having entered upon a trial which has to be suspended on account of the absence of material witnesses, or for other cause, is authorized, in its discretion, to take up a new case not likely to involve an extended investigation, and proceed with it to its termination before resuming the trial of the first case. III, 281, August, 1863; IX, 650, September, 1864; XXVI, 548, May, 1868. 1004. A court martial has no power to terminate its own existence or function. Where therefore it has adjourned "sine die" (see

'It has not been the practice in this country for the convening authority to detail an officer to attend a military court in a ministerial capacity-to summon witnesses, enforce the attendance of the accused, &c. In the special case, indeed, of the persons charged with complicity in the assassination of President Lincoln, and tried by military commission, it was ordered by the President-May 1st, 1865-as follows: "That Brevet Major General Hartranft be assigned to duty as special provost marshal general for the purposes of said trial, and attendance upon said 'commission, and the execution of its mandates."

2Compare Eberhardt v. State, 47 Ga., 598; and see the trial, by court-martial, of B. G. Harris (Ex. Doc. No. 14, H. R., 39th Cong., 1st sess., p. 25), where, on the day on which the accused was to present his final argument to the court, and which was two days after the formal closing of the case, the defence was allowed to introduce new testimony on the merits. See also Court-Martial Manual (1901), p. 43.

It is moreover the duty of a court martial to see that injustice is not done the accused by the admission on the trial of improper testimony prejudicing his defence, or unfairly tending to aggravate the misconduct charged. In the interests of justice, therefore, the court may exclude such testimony although its admission may not be objected to on the part of the accused. Compare State v. O'Connor, 65 Missouri, 374.

§ 395, ante), it may, without being formally reconvened in orders, reassemble and take up and try a case referred to it by the convening authority, through its president or judge-advocate, precisely as if it had not adjourned at all. It is its duty indeed to hold itself in readiness to try all cases so referred, until formally dissolved by the convening officer or his successor in the command. XIX, 628, May, 1866; XLI, 282, June, 1878.

1005. An adjournment "sine die" by a court martial does not dissolve it, and the reviewing authority is authorized to send back to the court its record for the reconsideration of the judgment, and the court itself to reconsider and reframe the sentence, subsequently to such an adjournment and without regard to it.1 LV, 208, December, 1887.

1006. A court martial is not legally dissolved till officially informed of an order, from competent authority, dissolving it. The proceedings of a court martial, had after the date of an order dissolving it but before the court has become officially advised of such order, will thus be quite regular and valid. Where an order dissolving forthwith a court martial has been duly officially received by the court and has thus taken effect, an order subsequently received revoking this order will be entirely futile. It will not revive the court, but the same, to be qualified for further action, must be formally re-convened as a new and distinct tribunal. XLIII, 160, January, 1880; 32, 29, April, 1889.

1007. Except where it sustains a challenge under Art. 88, a court martial is not authorized to dispense with the attendance of a member.2 XXXVII, 34, September, 1875. It cannot excuse a member to enable him to attend to other duties; for example, to act as counsel for the accused. For such purpose he must be duly relieved by the convening authority. XXI, 650, September, 1866; XXXV, 488, 490, July, 1874. Where a court martial relieved two of its members on the ground that, having been absent from a portion of the proceedings, they had not heard a portion of the testimony, held that, provided five members had always remained and been present, the validity of the findings and sentence was not affected, and the same would properly be approved, unless it appeared that the action of the court had in some manner prejudiced the defence. 15, 48, February, 1887.

3

1008. Where a court martial excused its judge-advocate, and required its junior member to act as judge-advocate in his stead, held that its action was wholly unauthorized and that its proceedings were properly disapproved. It is only the convening authority (or his suc

'See Brown v. Root, Sup. Court, D. C., 1900 (44,087 Law).

2 Compare 7 Opins. At. Gen. 98.

See note to § 1667, post.

'See G. C. M. O. 62, War Dept., 1874.

cessor in command) who can relieve or detail a member or a judgeadvocate. XXVIII, 198, October, 1868.

1009. Strictly, communications from the convening authority to the court as such (and vice versa) should be made to (and by) the president as its organ, unless in the latter case the court directs the judgeadvocate to represent it; communications relating to the conduct of the prosecution should be made to (and by) the judge-advocate. XXIX, 336, October, 1869.

1010. There is no law prohibiting a court martial of the United States from sitting on Sunday, and the fact that a sentence of such a court is adjudged on that day can affect in no manner its validity in law. XXXIX, 321, 627, November, 1877, and August, 1878; Card 2955, February, 1897.

1011. The polling of a court martial, in the manner of a jury or otherwise, is a proceeding wholly unknown to military law. So, where an officer, acting as the counsel of a soldier on trial by court martial, demanded, on the court ruling adversely upon the admission of a special plea, that it be polled,-held that his action was wholly irregular as well as disrespectful to the court.1 XXXIV, 454, September, 1873. 1012. A court martial is authorized, in its discretion, to sit with doors. closed to the public. Except, however, when temporarily closed for deliberation, courts martial in this country are almost invariably open to the public during a trial. XXIX, 34, June, 1869. But in a particular case where the offences charged were of a scandalous nature, it was recommended that the court be directed to sit with doors closed to the public. Card 1637, August, 1895.

1013. A court martial is authorized to exclude from its session any person who, it has good reason to believe, will endeavor to intimidate. or interrupt the witnesses, or otherwise conduct himself in a disorderly manner. XXIX, 237, August, 1869.

1014. Where, after the accused has pleaded guilty, or after he has pleaded not guilty and the evidence for the prosecution has been presented, he effects an escape from military custody and disappears, he may properly be held to have waived his right of defence, and the court is authorized to proceed with the trial to a finding and, in the event of conviction, a sentence. XI, 260, 295, December, 1864; XXI, 169, January, 1866. Where, in such a case, the accused leaves counsel, the court may, in its discretion, allow such counsel to introduce evidence and present an argument. XIX, 487, March, 1866.

1015. The remarking by the court, in connection with the finding 1See G. C. M. O. 37, War Dept., 1873.

2 See Fight . The State, 7 Ohio, 180; McCorkle r. The State, 14 Ind., p. 39; State v. Wamire, 16 Ind., 357. See also Court-Martial Manual (1901), par. 7, p. 15.

or sentence, unfavorably upon an officer or soldier (other than the accused) whose conduct is exhibited by the testimony, or upon an act or practice deemed proper to be noted in the interests of military discipline, though now comparatively unusual, is sanctioned by the authorities as permissible and regular in a proper case.' XXVIII, 626, May, 1869; XXIX, 216, August, 1869.

1016. A court martial may, in connection with its judgment, properly animadvert upon a witness, not only as testifying falsely but as giving evasive and disingenuous testimony; but the power to thus animadvert upon witnesses should be exercised with caution. 42, 156, July, 1890.

1017. To detail as a military commission the same officers as those already constituting a court martial or vice versa, without dissolving the court first convened, though a proceeding for which there are precedents both in the Mexican war and the war of the rebellion, is one which should not be resorted to where, without material embarrassment to the service, it can be avoided. And this view is applicable, though with less force, to the case of a single officer proposed to be detailed upon two distinct military courts at the same time: such a detail should not be made unless, on account of the scarcity of officers available for such duty, it cannot well be avoided. VII, 134, Febru ary, 1864; XIX, 495, March, 1866.

1018. A court-martial has only statutory powers. Its judicial authority being derived wholly from statute (mostly the Articles of War), it can exercise no common law functions, such, for example, as the general power to punish for contempt. XLIX, 306, August, 1885. Its origin and authority being statutory, the statute law investing it with its powers must be closely followed. No presumption can be made in favor of its jurisdiction. LV, 486, March, 1888.

1019. Courts-martial being no part of the Judiciary of the United States, but simply instrumentalities of the Executive power, the provisions of Art. VI of the Amendments to the Constitution, according, in criminal prosecutions, the right of trial by jury and to be confronted with the witnesses, do not apply to their procedure which is governed wholly by statute and military usage. Held therefore that the use of depositions under the provisions of the 91st Article of war was not open to objection on constitutional grounds. 52, 204, February, 1892; 55, 493, October, 1892.

1020. The principle of the Vth Amendment to the Constitution, but

'See Simmons §§ 699-707; Kennedy, 196-7; De Hart, 182-3; O'Brien, 268. In Jekyll v. Moore, 2 Bos. & Pul. 341, the expression of opinion by a court-martial, in acquitting an accused, that the prosecution had been actuated by malice, was held not to constitute a libel.

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