thereupon paid such amount by the paymaster, held, in view of par. 736, A. R. (1889), that the company commander was accountable for the amount thus wrongfully paid and lost to the United States.1 50, 358, November, 1891. 1349. Where the company commander who certified to the final statements of a soldier of his company neglected to have debited against his account therein an amount of thirty dollars due by the soldier as the purchase money of his discharge, so that this amount was not in fact collected from the soldier, held that the officer was chargeable with the amount thus lost by his neglect. 65, 375, July, 1894. 1350. Where a discharged volunteer soldier made out fraudulent final statements and presented the same to a paymaster for payment, advised that the matter be referred to the Department of Justice, that the man might be proceeded against under Sec. 5438, Rev. Sts. Card 7284, November, 1899. 1351. Where a discharged soldier regularly assigned his final statements which upon presentment for payment were found to call for more than was in fact due, held that the difference between the amount paid and the amount erroneously called for on the final statement could be made the subject of a claim against the discharged soldier, the assignor, but not against the United States. The man having reenlisted, it was further held that a stoppage against his pay to satisfy the claim above referred to would be a stoppage to satisfy a private claim and therefore not authorized. Card 8355, June, 1900. FINDING. 1352. The finding of the court should be governed by the evidence, considered in connection with the plea. Where no evidence is introduced, the general rule is that the finding should conform to the plea. XXXVII, 409, March, 1876; XXXVIII, 188, July, 1876. But where an accused pleads guilty to the specification and not guilty to the charge, the question submitted to the court is whether the facts alleged in the specification sustain the charge as a matter of law, and in such a case the court may find guilty of both charge and specification. 49, 471, October, 1891. 1353. The finding on the charge should be supported by the finding on the specification (or specifications), and the two findings should be consistent with each other. A finding of guilty on the charge would be quite inconsistent with a finding of not guilty, or guilty without Note that A. R. 654 of 1895 (736 of 1901), contains the provision (not in A. R. 736 of 1889) that "the disbursing officer cannot protect himself in an erroneous payment made without due care by charging lack of care against the officer who gave the certificate." attaching criminality, on the specification. So, a finding of guilty upon a well pleaded specification, apposite to the charge, followed by a finding of not guilty either of the offence charged or some lesser offence included in it (see § 1359, post), would be an incongruous verdict. IV, 275, October, 1863. No matter how many specifications there may be, it requires a finding of guilty or not guilty on but one specification (apposite to the charge) to support a similar finding upon the charge. IX, 90, May, 1864. 1354. There should be a separate and independent finding upon each charge and specification, and each separate finding should cover the charge or specification as to which it is made; so that if any charge or specification is deemed by the court to be proved only in part, the finding shall show specifically what is found to be proved and what not. V, 398, February, 1865; XVI, 73, April, 1865. 1355. It is a peculiarity of the finding at military law, that a court martial, where of opinion that any portion of the allegations in a specification is not proved, is authorized to find the accused guilty of a part of a specification only, excepting the remainder; or, in finding him guilty of the whole (or any part), to substitute correct words or allegations in the place of such as are shown by the evidence to have been inserted through error. And provided the exceptions or substitutions leave the specification still appropriate to the charge and legally sufficient thereunder, the court may then properly find the accused guilty of the charge in the usual manner. XXIII, 188, August, 1866. 1356. It is not competent for a court martial to find an accused not guilty of the specification, and yet guilty of the charge, where there is but one specification. By finding him not guilty of the specification they acquit him of all that goes to constitute the offence described in the charge. Where the court believe that the accused is guilty of the charge, but not precisely as laid in the specification, they should find him guilty of the latter with such exceptions or substitutions as may be necessary to present the facts as proved on the trial, and then guilty of the charge. V, 576, January, 1864. 1357. Familiar instances of the exercise of the authority to except and substitute in a finding of guilty occur in cases where, in the specification, the name or rank of the accused or some other person is erroneously designated, or there is an erroneous averment of time or place, or a mistaken date, or an incorrect statement as to amount, quantity, quality, or other particular, of funds or other property, &c. XIII, 398, 402, February, 1865; XIV, 228, March, 1865; XXVI, 435, February, 1868. 1358. In finding guilty upon a specification, to except from such finding the word or words which express the gravamen of the act as charged and found, is contradictory and irregular. As, from a finding of guilty on a specification to a charge of fraud under Art. 60, to specially except the word "fraudulent" or "fraudulently," while at the same time finding the accused guilty generally upon the charge. XI, 41, 44, 81, October, 1864. 1359. The practice of making exceptions and substitutions in the findings is well illustrated by the finding-authorized at military law when called for by the evidence1—of a lesser kindred offence included as a constituent element in the specific offence charged. Of this form of verdict the most familiar instance is the finding of guilty of absencewithout-leave under a charge of desertion. A full acquittal of desertion includes, of course, an absence-without-leave involved in it; but where the evidence falls short of establishing a desertion but shows an unauthorized absenting of himself by the accused, he may and should, be convicted of absence-without-leave, as his actual offence. In arriving at this conclusion, the findings on the specification and charge should be consistent, and the finding on the former should be such as to support the latter. In their finding of guilty upon the specification, the court should in terms except from its application such words of the specification as allege or describe desertion exclusively, and substitute words describing the lesser offence; the words "did desert," for example, being excepted, and the words "did absent himself without authority" being substituted. The finding on the charge should regularly be "not guilty, but guilty of absence-without-leave."3 VII, 357, 616, 634, March and May, 1864; IX, 24, 26, 46, 49, May, 1864; XIII, 655, May, 1865. 1360. But the authority to find guilty of a minor included offence, or otherwise to make exceptions or substitutions in the finding, cannot justify the conviction of the accused of an offence entirely separate and distinct in its nature from that charged. Thus held that it was not a finding of a lesser included offence to find the accused guilty merely of absence-without-leave under a charge of a violation of the 42d Article of War in abandoning his post before the enemy. XI, 274, December, 1864. And so held of a finding, under a charge of a violation of Art. 39, of not guilty but guilty of a violation of Art. 40. XI, 276, December, 1864. So, where a soldier charged with "conduct to the prejudice of good order and military discipline," in concealing the fact that a fellow soldier had appropriated to his own use certain public See 13 Opins. At. Gen., 460. 2Compare Reynolds . People, 83 Ills., 479, and note the similar authority given in criminal cases in the United States courts, by Sec. 1035, Rev. Sts. 3 A simple finding, however, of guilty of absence without leave, though an irregu lar form, would amount in law to an acquittal of the higher offence charged. Compare Morehead v. State, 34 Ohio St. 212; and see § 1093, ante. property, was found not guilty of the specification as laid, but guilty of having stolen the property himself" and guilty of the charge, and was accordingly sentenced to imprisonment,-held that such a finding was manifestly unauthorized. Having been found not guilty of the offence set forth in the specification and which alone he was called upon to answer, he should have been acquitted on both charge and specification: the offence of which he was found guilty was not alleged against him, and not being included in that charged, could not properly form the subject of a finding. The remission of his sentence therefore recommended. XXXIV, 569, October, 1873. 1361. It is a further peculiarity of the finding at military law that, where an accused is charged with "conduct unbecoming an officer and a gentleman," or with any specific offence made punishable by the Articles of War, and the court is of opinion that while the material allegations in the specification or specifications are substantially made out, they do not fully sustain the charge as laid but do clearly establish the commission of a neglect of military duty or a disorder in breach of military discipline as involved in the acts alleged, the accused may properly be found guilty of the specification (or specifications) and not guilty of the charge but guilty of "conduct to the prejudice of good order and military discipline.' (See § 1363, post.) Such a form of finding is now common in our practice, especially where the charge is laid under Art. 61, and its legality is no longer questioned. V, 265, November, 1863; IX, 656, September, 1864; XI, 87, November, 1864; XXIX, 299, October, 1869; 64, 193, March, 1894. 1362. The authority thus to find, however, has not been extended beyond the case indicated in the last paragraph: the reverse, for example, of this form of finding, has never been sanctioned. A finding of guilty of a certain specific offence, under a charge of another specific offence, or under a charge of "conduct unbecoming an officer and a gentleman," or of "conduct to the prejudice of good order and military discipline," would be wholly irregular and invalid. Thus a finding of guilty of disobedience of orders (or of a violation of Art. 21) under a charge of mutiny in violation of Art. 22, or a finding of drunkenness on duty (or of a violation of Art. 38) under a charge for a drunken disorder laid under Art. 62 or 61, would be not only unauthorized but now almost unprecedented, and, if such a finding were made, it could scarcely fail to be formally disapproved. And so of a finding of conduct unbecoming an officer and a gentleman" under a charge of conduct to the prejudice of good order and military discipline." XI, 274, December, 1864; XVI, 532, September, 1865. 66 66 1363. The general finding of "conduct to the prejudice," &c., in the cases indicated in § 1361, ante, is sanctioned in order to prevent a failure charged and found, is contradictory and irregula ing of guilty on a specification to a charge of fra specially except the word "fraudulent" or "fra the same time finding the accused guilty gener XI, 41, 44, 81, October, 1864. 1359. The practice of making exceptions and findings is well illustrated by the finding-auth when called for by the evidence1-of a lesser h as a constituent element in the specific offence c of verdict the most familiar instance is the find without-leave under a charge of desertion. tion includes, of course, an absence-withoutwhere the evidence falls short of establishi: an unauthorized absenting of himself by t should, be convicted of absence-without-le: In arriving at this conclusion, the finding charge should be consistent, and the findin such as to support the latter. In their specification, the court should in terms ex words of the specification as allege or de and substitute words describing the les desert," for example, being excepted, an self without authority" being substitut should regularly be "not guilty, but gui VII, 357, 616, 634, March and May, 1864; XIII, 655, May, 1865. 1360. But the authority to find gui or otherwise to make exceptions or su justify the conviction of the accuse and distinct in its nature from that not a finding of a lesser included. merely of absence-without-leave un 42d Article of War in abandoning l December, 1864. And so held of a tion of Art. 39, of not guilty but g 276, December, 1864. So, where the prejudice of good order and 1 fact that a fellow soldier had app See 13 Opins. At. Gen., 460. 2Compare Reynolds . People, 83 I in criminal cases in the United State3A simple finding, however, of gu lar form, would amount in law to an pare Morehead v. State, 34 Ohio St. se the fing, operly tnesses in under s and subForgery - to negative was no legal rge. 31, 117, on, of not guilty icle of War, was e made punishable ily being or involv and the finding not hout-leave contained wa, 441. om consideration the stateto have perjured himself, is |