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of the court, will properly, when prevented from attending, communicate the cause of his absence to the president or judge advocate, so that the same may be entered in the proceedings. Where a member, on reappearing after an absence from a session, fails to offer any explanation of such absence, it will be proper for the president of the court to ask of him such statement as to the cause of his absence as he may think proper to make.1 XXX, 315, May, 1870.

1663. It does not invalidate the proceedings of a court martial that a member who has been present during a portion of the trial, and has then absented himself during a portion, has subsequently resumed his seat on the court and taken part in the trial and judgment. Nor is the legal validity of the proceedings affected by the adding of a new member to the court pending the trial. In either case, however, the testimony which has been introduced and the material proceedings which have been had while the new or absent member was not present should be communicated to him before he enters, or re-enters, upon his duties as a member. Such was the ruling of the Secretary of War on Genl. Hull's trial, and this precedent was followed in repeated, though not frequent, cases during the civil war. For a member, however, who has been absent during a substantial part of a trial to return and take part in a conviction and sentence, is certainly a marked irregularity, and one which may well induce a disapproval of the findings and sentence in a case where there is reason to believe that the accused may have suffered material disadvantage from the member's action. VII, 128, 411, 467, February and March, 1864; VIII, 662, July, 1864; XXVII, 584, March, 1869.

1664. To add a new member to a military court after any material part of the trial has been gone through with, must always be a most undesirable measure, and one not to be resorted to except in an exceptional case and to prevent a failure of justice. Adding a member after

'See Court-Martial Manual (1901), p. 22, par. 3. It need scarcely be added that the absence of a member does not affect the legality of the proceedings, provided a quorum of members remain. See 7 Opins. At. Gen., 101.

2See the reply dated March 7, 1814, of the Secretary of War, Hon. John Armstrong, to the communication of the "acting special judge advocate," Hon. Martin Van Buren, submitting questions for the court. (Forbes' Trial of Hull, Appendix, pp. 28-29.) It was indeed held by Attorney General Berrien (2 Opins. 414) that a member of a court martial who has absented himself during the taking of testimony is disqualified to take part in the sentence. Attorney General Cushing, however, held in a later opinion (7 Opins. 98) that whether the absent member should resume his seat and act upon his return "must depend upon his own views of propriety." The Court-Martial Manual provides (p. 26, edition of 1898) that "no member who has been absent during the taking of evidence shall thereafter take part in the trial." This provision was at first viewed as mandatory and a failure to comply with it held to invalidate the sentence adjudged, but later the War Department apparently treated it as directory (see Circ. 21, A. G. O. 1899). It was, however, manifestly intended to enjoin a complete abandonment of the practice referred to in the text. See page 28, par. 4, edition of 1901.

all the testimony has been introduced, and nothing remains except the finding and sentence, is believed to be without precedent. XLI, 525, March, 1879.

1665. If a member, absent during the whole of the original proceedings had in a trial, is in fact present during proceedings had on revision to reconsider the sentence, the revised sentence is clearly illegal and should be declared void and set aside. Cards 4742, 4750, 4751, 4854, 4855, August, 1898.

1666. Where, in the course of a trial by court martial, a member of a court is served with a legal order in due form dismissing or discharging him from the military service, or an official communication notifying him of the acceptance of his resignation, he becomes thereupon separated from the army and can no longer act upon the court; he should therefore at once withdraw therefrom, and the fact of his withdrawal,' explained by a copy of the order, be entered upon the record. XI, 203, December, 1864. But where the term of service of a member as an officer of volunteers expired pending a trial by the court, held that the member was not thereupon disqualified, but could legally continue to act upon the court till actually discharged or mustered out of the service. XV, 111, March, 1865.

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1667. While it is in general undesirable that a member of a military court should testify as a witness at a trial had before such court, unless perhaps his testimony relates to character merely, yet the fact that he is called upon to testify, while it does not affect the validity of the proceedings, does not operate to debar the member himself from the exercise of any of the duties or rights incident to his membership. He remains entitled to take part in all deliberations, including indeed those had in regard to the admissibility of questions put to himself or of his answers to questions. XXVI, 216, November, 1867.

1668. Where an officer, detailed as a member of a general court martial, was duly relieved by order therefrom, but continued notwithstanding to sit upon the court during a trial, taking part in the findings and sentence, held that the sentence should properly be set aside as null and void. 41, 39, May, 1890.

And the proceeding should be similar where a member is served with an order of the President placing him upon the retired list; retired officers not being legally competent to sit upon courts martial. But the receipt by a member, during the proceedings of the court, of an appointment to a higher rank, or of other official notice of his promotion, can affect in no manner his competency to act upon the court. The fact of the promotion should indeed be noted in the record and the officer be thereafter designated by his new rank.

In a case in G. C. M. O. 104, Dept. of Kentucky, 1865, the proceedings were, properly, disapproved because a member had remained and acted upon the trial after receiving official notice of his muster-out.

3 Compare People v. Dohring, 59 N. York, 374.

*See G. C. M. 6. 20, Dept. of California, 1890, published after the date of this ruling.

MILEAGE.1

1669. An officer on leave of absence, whose leave, before being completed, is terminated by an order of competent authority requiring him to return at once to his station, is entitled to mileage for the return journey, upon duly complying with such order. XXXVI, 420, April, 1875.

1670. By the act of July 24, 1876, s. 2, "any officer" who "travels under orders" was entitled to a mileage allowance of "eight cents a mile for each mile actually traveled" by him under his order, provided he was not furnished transportation in any of the modes specified in the act. So, in a case of an officer who, while on leave of absence, was by an order from the Headquarters of the Army, placed on special duty in a bureau of the War Department, and, having been retained on such duty for a period extending by two weeks beyond the term of his leave, was, by a second order from the same source, formally relieved from such duty and ordered to return to his station, and thereupon duly returned accordingly;-held that, in so returning, he was traveling "under orders" in the sense of the act, and was therefore entitled to mileage for the journey from Washington to such station. XXXIX, 359, December, 1877.

1671. An officer, while on leave of absence, and a few days before its expiration, was placed on duty, and was kept on such duty during about a month after the expiration of the leave as originally granted, and was then ordered to the station of his company. Held that such order did not cause him to revert to the status of being on leave, but gave him the status, on his complying with it, of an officer "traveling on duty" and entitled to the mileage, &c., accorded by the act of February 27, 1893. 58, 475, April, 1893.

1672. Where an officer was required by a competent order to travel from his proper station to another post, to attend his own trial by court martial, and transportation was not furnished him,-held that he was entitled to mileage for such journey, the purpose for which the same was ordered to be made not being material. XXXIV, 339, June, 1873.

1673. An officer was duly ordered to proceed, in command of a guard for insane soldiers, from his station in California to Washington, the

1See the Army Appropriation Act of May 26, 1900, for the latest provisions in the matter of mileage to officers and contract surgeons. As noticeably new legislation, this act provides that "payment and settlement of mileage accounts of officers shall be made according to distances computed over routes established and by mileage tables prepared by the Paymaster General of the Army under the direction of the Secretary of War."

Held otherwise, however, by the Court of Claims, in Barr v. United States, 14 Ct. Cls. 272.

order directing in effect that transportation be furnished both ways for him and his command. At Washington, while the guard-its service being performed-returned at once according to the original order, the officer was specially authorized, by an order issued from the Headquarters of the Army, to delay his return for thirty days. Returning at the end of this time to California, an order was issued by the department commander in which the modification of his duty and action under the second order was recognized, and he was declared to be entitled to mileage for the return journey and was thereupon paid the same accordingly. Held that there was no legal objection to the last order, and that the amount of mileage allowed thereby could not properly or fairly be stopped at a subsequent date against the officer's pay. XLIII, 91, November, 1879.

1674. A regiment was ordered under date of September 15, 1894, to make a change of station, "the movement to commence October 10th." An officer on duty with the regiment obtained, on September 24th, a leave of absence for twenty days and rejoined at the new station about October 14, 1894. Held that while he was equitably entitled to the amount which the Government would have paid for his transportation had he remained with his regiment, he did not perform the travel on duty without troops within the meaning of the law and was not, therefore, entitled to mileage.1 Card 808, December, 1894.

1675. Held that an officer ordered from his station to witness the issue of annuity goods to Indians and to inspect beef cattle for the Indian service, having performed the travel without troops, was entitled to the mileage and cost of transportation authorized by the Army Appropriation Act of March 16, 1896; but held not so entitled where an officer duly detailed as an Indian agent performs travel under orders of the Interior Department on duty connected with the Indian Service. Card 2949, February, 1897.

1676. Paragraph 959, A. R., as amended by G. O. 62, A. G. O., of 1899 (1063 of 1901), authorizes payment of mileage over the shortest usually travelled route at the rate of eight cents per mile, to a reporter of a court martial and his assistants, while going from the place of employment to the place of holding the court, provided the latter place is more than ten miles from the former. Held, that the regulation does not authorize payment of mileage for the return journey. Card 7101, September, 1899.

When the station of an officer is changed while he is on leave of absence, he will, on joining his new station, if not furnished with transportation in kind, be entitled to mileage (or actual expenses if for ocean travel) for the excess of distance, if any, from the place of receipt of order to his new station, over the distance between that place and his old station. 7 Comp. Dec., 78. This is now incorporated in A. R. 1330, as amended by G. O. 121, A. G. O. 1900 (1483 of 1901).

MILITARY COMMISSION-ORIGIN, CONSTITUTION, PROCEDURE, &c.

1677. By a practice dating from 1847,' and renewed and firmly established during the civil war, military commissions have become adopted as authorized tribunals in this country in time of war. They are simply criminal war-courts, resorted to for the reason that the jurisdiction of courts martial, creatures as they are of statute, is restricted by law, and cannot be extended to include certain classes of offences (see § 1680, post) which in war would go unpunished in the absence of a provisional forum for the trial of the offenders. Their authority is derived from the Law of War, though in some cases their powers have been added to by statute.* Their competency has been recognized not only in acts of Congress but in executive proclamations," in rulings of the courts, and in the opinions of

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See Maj. Gen. Scott's G. O. 20, Hdqrs. of Army, Tampico, Feb. 19, 1847, republished "with important additions," in G. O. 190 and 287 of the same year. And see the following orders convening military commissions, issued by Gen. Scott: G. O. 81, 83, 121, 124, 147, 171, 194, 215, 239, 267, 270, 273, 292, 334, 335, 380, 392, Hdqrs. of Army, 1847; also do. 9 id. 1848. Also the following issued by Gen. Taylor: G. Ò. 66, 106, 112, 121, of 1847; and the following issued by Gen. Wool: G. O. 140, 179, 216, 463, 476, 514, of 1847.

In this connection, note also the institution by Gen. Scott of "Councils of War "summary courts for the punishment of certain violations of the laws of war-as exhib ited in G. O., 181, 184 and 372, Hdqrs. of Army, 1847, and do. 35 and 41 id. of 1848. 2 The first military commission of the civil war is believed to have been that convened by Maj. Gen. Fremont, by G. O. 118, Western Dept., St. Louis, Sept. 2, 1861. 3 See G. O. 100, War Dept., 1863, Sec. I, par. No. 13; do. 1, Dept. of the Missouri, 1862; do. 20, Hdqrs. of Army, 1847; United States v. Reiter, 4 Am. Law Reg. (N. S.) 534; State v. Stillman, 7 Coldw. 341; Hefferman v. Porter, 6 id., 697. And see also opinions of the Attorney General cited under this section in note 1, p. 463.

*See act of March 3, 1863, c. 75, s. 30, declaring that, in time of war, &c., murder, manslaughter, robbery, larceny, and other specified crimes, when committed by persons in the military service, shall be punishable by sentence of court martial "or military commission," &c.- -an enactment repeated, as to courts martial, in the 58th Article of War: Also, sec. 38 of the same act (repeated in Sec. 1343, Rev. Sts.) making spies triable by general court martial "or military commission" and punishable with death. See, further, act of July 2, 1864, c. 215, s. 1, by which commanders of departments and commanding generals in the field were authorized to carry into execution sentences imposed by military commission upon guerrillas: Also act of July 4, 1864, c. 253, secs. 6 and 8 (not now in force) making inspectors in the Quartermaster Department triable and punishable by sentence of court-martial or "military commission," for fraud or neglect of duty, as also other employees and officers of that department for accepting bribes from contractors, &c. Also the Reconstruction Act of March 2, 1867, c. 153, s. 3, by which commanders of military districts were authorized to convene military commissions for the trial of certain offenders. See § 1690, post.

5 See the acts cited in last note, together with Secs. 1199, 1343 and 1344, Rev. Sts., as also the appropriation acts of July 24, 1876, Nov. 21, 1877, June 18, 1878, June 23, 1879, and May 4, 1880, in which, among other items for the Pay Department, appropriation is made "for compensation for citizen clerks and witnesses attending upon courts-martial and military commissions."

See the proclamations of Sept. 24, 1862, and April 2, 1866.

Ex parte Vallandigham, 1 Wall., 243; In the matter of Martin, 45 Barb. 146; State v. Stillman, 7 Coldw. 341. In the last case the court say: "A military commission is a tribunal now (1870) as well known and recognized in the laws of the United States as a court martial.' It has been "recognized by the executive, legislative and judicial departments of the government of the United States."

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