the sentence, or for mitigating or partially remitting the punishment. XXII, 502, December 1866; XXXIII, 616, December, 1872; XXXIX, 13, May, 1876.

277. Where an accused soldier, by reason of his regiment having been moved a long distance since his arrest, was separated at his trial, from certain witnesses material to his defence, held, that he was entitled to a reasonable continuance for the purpose of procuring their attendance or their depositions. XXIV, 559, May, 1867.

278. That the charges and specifications upon which an accused is arraigned differ in a material particular from those contained in the copy served upon him before arraignment, may well constitute a sufficient ground for granting him additional time for the preparation of his defence. XXIV, 514, May, 1867.

279. Where after arraignment a material and substantial amendment is allowed by the court to be made by the judge advocate in a specification, the effect of which amendment is to necessitate or make desirable a further preparation for his defence on the part of the accused, a reasonable postponement for this purpose will in general properly be granted by the court. XXII, 58, April, 1866.

280. It is in general good ground for a reasonable continuance, that the accused needs time to procure the assistance of counsel, if it is made to appear that such counsel can probably be obtained within the time asked, and that the accused is not chargeable with remissness in not having already provided himself with counsel. XIII, 400, February, 1865.

NINETY-FOURTH ARTICLE.3

Proceedings of trials shall be carried on only between the hours of eight in the morning and three in the afternoon, excepting in cases which, in the opinion of the officer appointing the court, require immediate example.

281. This Article is imperative upon the point that no proceedings of trials shall be carried on before eight o'clock a. m. or after three o'clock p. m., except in the class of cases specifically indicated. Where, therefore, the record shows affirmatively that any particular material proceeding of the trial was had by the court before eight or after three o'clock, and sets forth no authority for the same from the convening officer (such as the usual direction or permission in the convening order, that the court "will," or "may, sit without regard to hours "),

1 See G. C. M. O. 35, War Dept., 1867; do. 128, Hdqrs. of Army, 1876; G. O. 24, Dept. of Arizona, 1874.

2 G. C. M. O. 25, War Dept., 1875.

Note the different reasons for this enactment assigned by Attorney General Speed (11 Opins. 137, 141), and Coppée (p. 50). And see, on this point, Hough (Practice), 377. This Article was repealed by act of March 2, 1901 (G. Ổ. 27, A. G. Ö., 1901).

such proceeding must be held unauthorized and of no legal effect.' And if the proceeding, thus futile, was one necessary to the completeness of the trial, or otherwise important, it should be repeated, or taken de novo, within legal hours. II, 123, March, 1863; VII, 433, April, 1864; XXIII, 627, August, 1867; XXXVI, 496, May, 1875. 44, 143, December, 1890.

282. The Article, however, does not require that the record shall show in terms that the hours indicated were observed. It is proper, indeed, and the best practcie, to state the hour of each meeting and adjournment; but where no such entry appears in the proceedings, the same will not be invalidated, but, in the absence of evidence to the contrary, it will be presumed, in favor of the record," that the court did not sit except between the prescribed hours. XXII, 635, March, 1867; XXIII, 627, August, 1867; XXX, 144, March, 1870.

283. The entertaining by the court, after three o'clock p. m., of a motion to adjourn would not be unauthorized, such a motion not being properly a proceeding of a trial in the sense of the Article. XXVIII, 189, October, 1868.

284. Where neither in the order convening a court-martial, nor in any supplementary order, is authority given for its sitting beyond or outside of the hours prescribed by this Article, and its record affirmatively shows that the trial or a portion of the trial of a case was not conducted within such hours, the proceedings had outside the prescribed hours, are unauthorized and inoperative, and the sentence, if any, is nullified, unless by a reconvening of the court the defect may be remedied. 44, 77, November, 1890. Thus, where it appeared from the record that a court martial, on a certain day, without any authority given it, completed a trial after 3 o'clock p. m., advised that the error might be corrected by continuing the trial anew, within legal hours, from the point reached at three o'clock on that day; and recommended that the court be reconvened for this purpose. 44, 143, December, 1890.

NINETY-FIFTH ARTICLE.

Members of a court-martial, in giving their votes, shall begin with the youngest in commission.

1In some cases where the trials have, without express authority, been commenced before 8 a. m., or continued after 3 p. m., the entire proceedings and sentences have been disapproved as fatally defective. See G. O. 2, Dept. of the South, 1873; do. 94, Dept. of the Gulf, 1864; S. O. 281, Dept. of Washington, 1861. Strictly, however, it is only the proceeding had during the inhibited interval that is unauthorized and inoperative, and the irregularity involved may in general be remedied as indicated in the text. And see § 284, post. But see preceding note.

2 As to the presumption in favor of the regularity of judicial proceedings, see 1 Greenl. Ev., § 19; also § 2138, post, and note.

NINETY-SIXTH ARTICLE.

No person shall be sentenced to suffer death, except by the concurrence of twothirds of the members of a general court-martial, and in the cases herein expressly mentioned.

285. A sentence of death imposed by a court martial, upon a conviction of several distinct offences, will be authorized and legal if any one of such offences is made capitally punishable by the Articles of War, although the other offences may not be so punishable. III, 253, 276, 480, July and August, 1863.

286. A court martial, in imposing a death sentence, should not designate a time or place for its execution, such a designation not being within its province but pertaining to that of the reviewing authority. If it does so designate, this part of the sentence may be disregarded, and a different time or place fixed by the commanding general. III, 650, September, 1863.

287. Where a death sentence imposed by a court-martial has been directed by the proper authority to be executed on a particular day, and this day, owing to some exigency of the service, has gone by without the sentence being executed, it is competent for the same authority, or his proper superior, to name another day for the purpose, the time of its execution being an immaterial element of this punishment.' III, 650, September, 1863; V, 22, September, 1863.

NINETY-SEVENTH ARTICLE.

No person in the military service shall, under the sentence of a court martial, be punished by confinement in a penitentiary, unless the offence of which he may be convicted would, by some statute of the United States, or by some statute of the State, Territory, or District, in which such offence may be committed, or by the common law, as the same exists in such State, Territory, or District, subject such convict to such punishment.

288. This Article, by necessary implication, prohibits the imposition of confinement in a penitentiary as a punishment for offences of a purely or exclusively military character-such as desertion for exam

'It was held by the Supreme Court in Coleman v. Tennessee (7 Otto, 509, 519–520), that a soldier who had been convicted of murder and sentenced to death by a general court martial in May, 1865, but the execution of whose sentence had been meanwhile deferred, by reason of his escape and the pendency of civil proceedings in his case, might at the date of the ruling (October Term, 1878) "be delivered up to the military authorities of the United States, to be dealt with as required by law."

More recently (May, 1879, 16 Opins., 349), it has been held in this case by the Attorney General that the death sentence might legally be executed notwithstanding the fact that the soldier had meanwhile been discharged from the service; such discharge, while formally separating the party from the army, being viewed as not affecting his legal status as a military convict. But, in view of all the circumstances of the case, it was recommended that the sentence be commuted to imprisonment for life or a term of years.

ple. 1 V, 500, December, 1863; VII, 538, April, 1864; XXIII, 415, April, 1867; XXVIII, 126, September, 1868; XXIX, 250, September, 1869; XXXI, 296, April, 1871; XXXII, 255, January, 1872; XXXIII, 175, July, 1872.

289. A sentence of penitentiary confinement in a case of a purely military offence is wholly unauthorized and should be disapproved. Effect cannot be given to such a sentence by commuting it to confinement in a military prison, or to some other punishment which would be legal for such offence. XXIV, 202, January, 1867; XXVII, 299, October, 1868; XXX, 603, August, 1870; Card 439, October, 1894. Nor, in a case of such an offence, can a severer penalty-as death-be commuted to confinement in a penitentiary. XI, 413, February, 1865.

2

290. Nor can penitentiary confinement be legalized as a punishment for purely military offences by designating a penitentiary as a "military prison," and ordering the confinement there of soldiers sentenced to imprisonment on conviction of such offences. XXXV, 377, May, 1874; XXXIX, 659, September, 1878.

291. An offence duly charged as "Conduct to the prejudice of good order and military discipline," or as a violation of the 60th Article of War, which, however, is in fact a larceny, embezzlement, violent crime, or other offence made punishable with penitentiary confinement by the law of the State, &c., may legally be visited with this punishment. IX, 281, January, 1864; 28, 302, November, 1888.

292. The term "penitentiary," as employed in this Article, has reference to civil prisons only-as the penitentiary of the United States or District of Columbia at Washington, the public prisons or penitentiaries of the different States, and the penitentiaries "erected by the United States" (see Sec. 1892, Rev. Sts.) in most of the Territories. The term State or State's prison in a sentence is equivalent to penitentiary. IX, 70, May, 1864.

293. A military prisoner duly sentenced or committed to a penitentiary, becomes subject to the government and rules of the institution. XXIX, 296, September, 1869.

294. A court martial, in imposing by its sentence the punishment of confinement in a penitentiary, is not required to follow the statute of the United States or of the State, &c., as to the term of the confine

1See G. O. 4, War Dept., 1867; also the action taken in cases in the following General Orders: G. O. 21, Dept. of the Platte, 1866; do. 21, Id., 1871; do. 44, Eighth Army Corps, 1862; G. C. M. O. 34, 35, 43, 46, 72, 73, Dept. of the Missouri, 1870.

2 But see Par. 940, A. R, as amended by G. O. 3, A. G. O., 1901 (1041 of 1901). In a case of larceny, the court should inform itself as to whether the value of the property stolen be not too small to permit of penitentiary confinement for the offence under the local law. See G. O. 44, Eighth Army Corps, 1862; G. C. M. O. 63, Dept. of the Platte, 1872.

*See pars. 940 and 941, A. R. (1041 and 1042 of 1901).

ment. It may adjudge, at its discretion, except as provided in the 58th Article of War, a less or a greater term than that affixed by such statute to the particular offence. At the same time the court will often do well to consult the statute, as indicating a reasonable measure of punishment for the offence. XXVIII, 247, November, 1868.

295. Where a court martial specifically sentences an accused to confinement in a "military prison," he cannot legally be committed to a penitentiary, although such form of imprisonment would be authorized by the character of his offence. XXIX, 250, September, 1869. But where a sentence of confinement is expressed in general terms, as where it directs that the accused shall be confined "in such place or prison as the proper authority may order," or in terms to such effect, held that the same may, under this Article, legally be executed by the commitment of the party to a penitentiary, to be designated by the reviewing officer or Secretary of War, provided of course the offence is of such a nature as to warrant this form of punishment. XLI, 664, August, 1879; XLII, 218, March, 1879.

296. Held that penitentiary confinement could not legally be adjudged upon a conviction of a violation of the 21st Article, alleged in the specification to have consisted in the lifting up of a weapon (a pistol) against a commanding officer and discharging it at him with intent to kill. By charging the offence under this Article, the Government elected to treat it as a purely military offence subject only to a military punishment. 35, 141, September, 1889; 64, 385, April, 1894. So, upon a conviction of joining in a mutiny, in violation of Art. 22, held that a sentence of confinement in a penitentiary would not be legal although the mutiny involved a homicide, set forth in the specification as an incidental aggravating circumstance. 26, 284, September, 1888. To have warranted such a punishment in either of these cases the Government should have treated the act as a "crime," and charged and brought it to trial, as such. under Art. 62.

297. Where the act is charged as a crime under Art. 62, and charge and specification taken together show an offence punishable with confinement in a penitentiary by the law of the locus of the crime, the sentence may legally adjudge such a punishment. So held-in a case where charge and specification together made out an allegation of perjury under Sec. 5392, Rev. Sts. 26, 497, September, 1888.

298. "Obtaining money under false pretenses" is punishable by confinement in a penitentiary by the laws of Arizona. A sentence of courtmartial, imposing this punishment, on conviction of an offence of this description committed in this Territory, charged as a crime under Art. 62, held authorized by Art. 97. 31, 117, March, 1889.

299. A punishment of confinement in a penitentiary, where legal, may