in general of the severest quality, and the reviewing officer in acting upon the same is called upon to exercise an especially grave discretion. In capital cases particularly, it is most important that all the facts of the case-all circumstances of extenuation as well as of aggravation— should be exhibited in evidence. III, 647, September, 1863; VI, 370, September, 1864. In practice, the absence of evidence to illustrate the offence has been found peculiarly embarrassing in cases of deserters. In a majority of these cases in which the plea is "guilty," the record is found to contain no testimony whatever; and a full and intelligent comprehension of the nature of the offence-whether desired upon the original review of the proceedings or upon a subsequent application for remission of sentence-is thus, in many instances, not attainable.1 XXVII, 180, September, 1868. 1990. It not unfrequently happens upon trials of enlisted men that the accused, in pleading guilty, will proceed to make a statement (oral or written) to the court, which is in fact inconsistent with the plea. Thus, in a case where the accused, being evidently ignorant of the forms of law, pleaded guilty to an artificially worded charge and specification, and immediately thereupon made an oral statement to the court of the particulars of his conduct, setting forth facts quite incongruous with his plea, and no evidence whatever was introduced in the case;-held that the statement, rather than the plea, should be regarded as the intelligent act of the accused, and that, upon considering both together, the accused should not be deemed to have confessed his guilt of the specific charge. VIII, 274, April, 1864; XVII, 48, June, 1865; XXX, 33, July, 1869. In such a case the court will properly counsel the accused to plead not guilty, or direct such plea to be entered, and proceed to a trial and investigation of the merits (VI, 357, 370, September, 1864); the judge-advocate introducing his proof precisely as under an ordinary plea of not guilty. 61,394, September, 1893. And where, with a plea of guilty, there was offered by the accused a written statement setting forth material circumstances of extenuation, and the court without taking any testimony whatever, or apparently regarding the statement, proceeded to conviction and sentence; advised-the case being one in which the sentence had been partly executed—that this action constituted a reasonable ground for a remission of a portion of the punishment. XX, 120, 127, 177, November, 1865; XV, 142, April, 1865; XXIX, 421, November, 1869; XXXII, 652, May, 1872; XXXIII, 42, June, 1872. 1991. Wherever, in connection with the plea of guilty, a statement 1 See views of the Judge-Advocate General, relating to the subject of this paragraph, published in G. C. M. O. 69, Hdqrs. of Army, 1877. or confession, whether oral or written, is interposed by the accused, both plea and statement should be considered together by the court; and if it is to be gathered from the statement that evidence exists in regard to the alleged offence which will constitute a defence to the charge, or relieve the accused from a measure of culpability, the court will properly call upon or permit the judge advocate to obtain and introduce such evidence, if practicable. XIV, 585, 596, June, 1865; XXVI, 562, May, 1868; XXVIII, 123, September, 1868; XXIX, 11, 348, June and October, 1869; 658, February, 1870. 1992. It has not unfrequently happened that enlisted men, charged with desertion, have, in connection with a plea of guilty, made a statement disclaiming having had, in absenting themselves, any intention of abandoning the service, and stating facts which, if true, constitute absence-without-leave only. In such a case the accused cannot in general fairly be convicted of desertion in the absence of an investigation, and the court will properly, therefore, induce him to change his plea to not guilty, or direct this plea to be entered and take such evidence as may be attainable, to show what offence was actually committed.1 XXVI, 562, May, 1868. 1993. Statements inconsistent with the plea have not rarely been made in cases like larceny where several distinct elements are required to constitute the crime in law. For example, a soldier will plead guilty to a` charge of larceny, and thereupon make a statement disclaiming the peculiar intent (animus furandi) necessary to the offence, thus really admitting only an unauthorized taking. In such cases the court will properly instruct the accused that he should change his plea to not guilty, and, if he declines to do so, will properly call upon the judge advocate to introduce evidence showing the actual offence committed. XXVIII, 677, June, 1869; XXIX, 658, February, 1870. 1994. A court martial is authorized, in any case, in its discretion, to permit an accused to withdraw a plea of not guilty, and substitute one of guilty, and vice versa, or to withdraw either of these general pleas and substitute a special plea. And wherever the accused applies to be The views of the Judge-Advocate General, as presented in §§ 1990-1992, have been adopted in the general orders of the War Department and in numerous orders of the various military department, &c., commands. In G. C. M. O. 2, War Dept. 1872, the Secretary of War observes, in regard to two cases of soldiers, as follows: "The written statements submitted by the accused are contradictory of their pleas of guilty.' The court should have regarded these statements as neutralizing the effect of their pleas, and should have had the accused instructed as to their legal rights, and advised to change their pleas with a view to the hearing of testimony. It not unfrequently happens that soldiers do not understand the legal difference between absence-without-leave and desertion, or are wholly unable to discriminate as to the grade of their offences, as determined by their motives. They thus, sometimes, ignorantly plead guilty and are sentenced for crimes of which they may be actually innocent. The proceedings, findings, and sentences are disapproved." And see G. C. M. O. 31, War Dept., 1876. allowed to change or modify his plea, the court should in general consent provided the application is made in good faith and not for the purpose of delay, and to grant it will not result in unreasonably protracting the investigation. XXX, 672, October, 1870. 1995. Objections to the charges or specifications in matters of form should be taken advantage of by special pleas in the nature of pleas in abatement, or, better, by motion to strike out. Such are objections to the specifications as inartificial, indefinite, or redundant; or as misnaming the accused (or other persons required to be specified), or misdescribing him as to his rank or office; or as containing insufficient allegations of time or place, &c. In such cases the objection should be raised by a special plea in abatement, or by motion, in order that errors capable of amendment may be amended on the spot by the judge advocate, and the plea of not guilty (or guilty) being then made the trial may proceed in the usual manner. Objections of this class, not thus taken, will properly be considered as waived by the plea of guilty or not guilty, and their existence will not then affect the validity of the proceedings or sentence. V, 577, December, 1864; VII, 234, February, 1864; IX, 518, August, 1864; XV, 117, March, 1865; XXIV, 140, January, 1867; XXV, 100, September, 1867; XXVIII, 372, February, 1869; XXX, 288, April, 1870; XXXIV, 32, November, 1872; XXXV, 450, June, 1874; XXXVIII, 654, June, 1877; LI, 144, February, 1887; LVI, 243, May, 1888. Where without preliminary objection the accused pleads guilty or not guilty to a specification, in which he is incorrectly named or described, such plea will be regarded as an admission by the accused of his identity with the person thus designated, and he cannot thereafter object to the pleadings on account of misnomer or misdescription.1 V, 577, December, 1864; XV, 117, March, 1865; XXV, 100, September, 1867; LI, 144, February, 1887. 1996. Facts and circumstances which are properly matters of evidence are not legitimate subjects of pleas; as, for example, circumstances going to extenuate the offence. Thus held that good conduct of the accused in battle subsequent to the commission of the offence charged could not properly be presented in the form of a plea. VI, 79, 1Objections to the charges and specifications on account of matter of substance,—as that they do not contain the necessary allegations, or otherwise do not set forth facts constituting military offences,-should properly be made at the outset of the proceedings by a special plea in the nature of a demurrer, or they will in general be regarded as waived. So, objections going to the legal constitution or composition of the court, or to its jurisdiction, should also properly be specially presented when the accused is first called upon to plead: valid objections of this radical character, however, are not waived if the accused, instead of submitting a special plea, pleads over to the merits, since consent cannot confer jurisdiction on a court martial where none exists in law. See § 1031, ante, and note. April, 1864. So held that the fact that the charge was preferred through personal hostility to the accused was not matter for plea, but, if desired to be taken advantage of, should be offered in evidence. XXXIV, 554, October, 1873. 1997. A plea of a restoration to duty by competent authority without trial, under the Army Regulations, is in the nature of a plea of a constructive pardon, and a good special plea in bar of trial. But going to trial on the general issue waives it.1 XLIX, 94, May, 1885. 1998. An individual pardon must be pleaded; but a court is bound to take judicial notice, as affecting its jurisdiction, of a general pardon or amnesty. Thus where a court martial failed to do so in the trial of a deserter who had returned to service under the terms of the cmnesty proclamation of March 11, 1865, this fact appearing from the specification to the charge of desertion upon which he was tried, it was held that the court was without jurisdiction of the offence and that the trial had was illegal. Card 1274, April, 1895. 1999. Where an accused declined to plead on the ground that he was so much under the influence of liquor at the time of the acts charged that he could not remember what occurred, held that the court properly directed a plea of "not guilty" to be entered. XLIX, 545, December, 1885. 2000. The fact that a sergeant has been reduced to the ranks, confined in arrest, and required to perform work under the custody of a sentinel, though such a disposition may be in excess of authority, cannot constitute a legal plea in bar to a trial upon the charge for which he was arrested. Such treatment is apposite to the case only as entering into the consideration of the question of the quantum of punishment upon conviction. XLVII, 242, July, 1883. POST COMMANDER. 2001. A post commander cannot properly allow his post to become an asylum for fugitives from civil justice. XXXVI, 450, May, 1875. 2002. Held that the commander of the prison post at Alcatraz Island was authorized to make and enforce all necessary and proper regulations for the safe keeping and government of the military prisoners there confined; that he might, by the use of force, if needful, but using no more force than was necessary, prevent civilians from landing on the island in violation of the regulations, and put such persons off the island as had landed there contrary to the same; that, in an extreme case, as where a civilian engaged in aiding a prisoner to 1 1 Compare Heard's Criminal Pleading, 296; U. S. v. Wilson, 7 Peters, 150. escape, and no other means of prevention would avail, he might properly order the party to be fired upon by the guard. XXXII, 525, April, 1872. 2003. Where a general court martial has been convened at a military post by the department commander, the commander of the post is not empowered, in the absence of authority from such superior, to refer cases to the court for trial. Such action has sometimes been taken and acquiesced in, but (unless specially authorized) it is irregular and a transcending of his province by the post commander. XLI, 306, July, 1878. 2004. A Post commander can, in his discretion, exclude all persons. other than those belonging to his post from post and reservation grounds, but should he admit everybody except one individual against whom no charge of wrong doing existed, such action would be considered an abuse of discretion on the part of the post commander. Card 2682, October, 1896. POST EXCHANGE OR CANTEEN. 2005. The post exchange (or canteen) is (or was) in no sense a post trader but an establishment created solely by military orders. Card 1490, July, 1895. 2006. The relation which exists between the post exchange and the officer in charge, as to the custody of its funds, is not simply that of a gratuitous bailment. In a case of such a bailment, the law only requires slight diligence and makes responsible only for gross neglect. But the liability here is more than this; the custody of the funds is an official duty, devolving a material trust, and in the discharge of that duty a greater degree of care is required. So, where the officer in charge of a post exchange, in conveying the funds of the exchange from the post to a bank in the town for deposit, placed them in a package inside of the breast of his blouse which was without pockets, and the package slipped down and was lost-held that the officer had not used due care and should be charged with the amount lost. June, 1892. 54, 41, 2007. Where the officer in charge of a post exchange at a post adjoining a city, having in his hands for deposit in bank an amount of about one thousand dollars of post exchange funds, instead of personally attending to the deposit, sent in to the bank, with the funds, the post exchange steward, who appropriated to his own use a portion of the amount and did not return to the post till arrested by the civil authorities-held that the officer, not being a mere bailee without compensation but an official charged with the custody of the funds in a |