be mitigated to confinement in a military prison or at a military post. 29, 209, January, 1889. 300. A discharged soldier, serving a sentence of confinement in a State or Territorial penitentiary, still remains under military control, at least so far that his sentence may, by competent military authority, or by the President, be remitted, or may be mitigated-as for example to confinement in a military prison or at a military post. 17, 216. January, 1887; 29, 209; January, 1889; 63, 370, February, 1894. NINETY-EIGHTH ARTICLE. No person in the military service shall be punished by flogging, or by branding, marking, or tattooing on the body. NINETY-NINTH ARTICLE. No officer shall be discharged or dismissed from the service, except by order of the President, or by sentence of a general court-martial; and in time of peace no officer shall be dismissed, except in pursuance of the sentence of a court martial, or in mitigation thereof. ONE HUNDREDTH ARTICLE. When an officer is dismissed from the service for cowardice or fraud, the sentence shall further direct that the crime, punishment, name, and place of abode of the delinquent shall be published in the newspapers in and about the camp, and in the State from which the offender came, or where he usually resides; and after such publication it shall be scandalous for an officer to associate with him. 301. The terms "cowardice" and "fraud," employed in this Article, may be considered as referring mainly to the offences made punishable by Articles 42 and 60. With these, however, may be regarded as included all offences in which fraud or cowardice is necessarily involved, though the same be not expressed in terms in the charge or specification. XI, 671, April, 1865. 302. Though the injunction of the Article, as to the direction to be added in the sentence, should of course regularly be complied with, a failure so to comply will not affect the validity of the punishment of dismissal adjudged by the sentence.1 XXII, 508, December, 1866; XXVII, 652, May, 1869. ONE HUNDRED AND FIRST ARTICLE. When a court martial suspends an officer from command, it may also suspend his pay and emoluments for the same time, according to the nature of his offence. SEE SUSPENSION. Note the action taken in the case published in G. C. M. O. 27, War Dept., 1872. The declaration of the Article, that after the publication, it shall be scandalous for an officer to associate with" the dismissed officer, though it has, as in cases published in G. O. (A. & I. G. O.) of May 13, 1820, and G.O. 168, Dept. of the Missouri, 1865, been incorporated in the sentence, is not intended to be, and should not be so incorporated. ONE HUNDRED AND SECOND ARTICLE. No person shall be tried a second time for the same offence. 303. The Constitution (Art. V of the Amendments) declares that "no person shall be subjected, for the same offence, to be twice put in jeopardy of life or limb." The U. S. courts, in treating the term "put in jeopardy" as meaning practically tried, hold that the" jeopardy" indicated "can be interpreted to mean nothing short of the acquittal or conviction of the prisoner and the judgment of the court thereon."1 So, held that the term "tried," employed in this Article, meant duly prosecuted, before a court-martial, to a final conviction or acquittal; and, therefore, that an officer or soldier, after having been duly convicted or acquitted by such a court, could not be subjected to a second military trial for the same offence, except by and upon his own waiver and consent. That the accused may waive objection to a second trial was held by Attorney General Writ in 1818, and has since been regarded as settled law. V, 172, October, 1863; Card 5766, January, 1899; VI, 62, and VIII, 37, March, 1864. 304. Where an officer or soldier has been duly acquitted or convicted of a specific offence, he cannot, against his consent, be brought to trial for a minor offence included therein, and an acquittal or conviction of which was necessarily involved in the finding upon the original charge. Thus a party convicted or acquitted of a desertion cannot afterwards be brought to trial for an absence without leave committed in and by the same act. See $$ 1093 and 1359, post. 305. Held that there was no "second" trial, in the sense of the Article, in the following cases, viz: Where the party, after being arraigned or tried before a court which was illegally constituted or composed, or was without jurisdiction, was again brought to trial before a competent tribunal. IX, 261, June, 1864; XVIII, 214, September, 1865; XXVIII, 68, August, 1868; Cards 1645, September, 1895; 4036, April, 1898. Where the accused, having been arraigned upon and having pleaded to certain charges, was rearraigned upon a new set of charges substituted for the others which were withdrawn. XIX, 212, October, 1865. Where one of several distinct charges upon which the accused had been arraigned was withdrawn pending the trial, and the accused, after a trial and finding by the court upon the other charges, was brought to trial anew upon the charge thus withdrawn. V, 213, October, 1863. Where, after proceedings commenced but discontinued without a finding, the accused was brought to trial anew upon the same charge. V, 192, October, 1863. V, 192, October, 1863. Where, after having been 1United States v. Haskell, 4 Wash. C. C., 402, 409. maker, 2 McLean, 114; United States v. Gilbert, 2 Perez, 9 Wheaton, 579; 1 Opins. At. Gen., 294. 21 Opins. At. Gen., 233. Ând see also 6 id., 200, 205. And see United States r. Shoe- acquitted or convicted upon a certain charge which did not in fact state the real offence committed, the accused was brought to trial for the same act but upon a charge setting forth the true offence. XXV, 675, June, 1868; XXVII, 604, April, 1869. Where the accused was brought to trial after having had his case fully investigated by a different court which however failed to agree in a finding and was consequently dissolved.' XXV, 73, September, 1867. Where the first court was dissolved because reduced below five members by the casualties of the service pending the trial. VI, 62, March, 1864. Where, for any cause, without fault of the prosecution, there was a "mistrial,” or the trial first entered upon was terminated, or the court dissolved, at any stage of the proceedings before a final acquittal or conviction. V, 192, October, 1863; 32, 29, April, 1889. 306. Where an officer or soldier, having been acquitted or convicted of a criminal offence by a civil court, is brought to trial by a courtmartial for a military offence involved in his criminal act, he can not plead "a former trial," in the sense of this Article. So where the trial for the military offence has preceded, he can not plead autrefois acquit or convict to an indictment for the civil crime committed in and by the same act." V, 140, October, 1863. 307. Where the accused has been once duly convicted or acquitted, he has been "tried" in the sense of the Article, and can not be tried again, against his will, though no action whatever be taken upon the proceedings by the reviewing authority (XXXI, 300, April, 1871); or, though the proceedings, findings (and sentence, if any) be wholly disapproved by him.3 IX, 611, September, 1864; XXVII, 348, November, 1868; 605, April, 1869; XXXVIII, 38, April, 1876; 60, 177, June, 1893. It is immaterial whether the former conviction or acquittal was approved or disapproved. 36, 259, November, 1889. 308. That an accused has been, in the opinion of the reviewing authority, inadequately sentenced, either by a general or an inferior court, cannot except his case from the application of this Article; though insufficiently punished, he cannot be tried again for the same offence. VII, 17, January, 1864; XXVIII, 69, August, 1868. 309. Where an officer, who had killed a superior officer in an altercation at a military post, was brought to trial before a civil court on a charge of murder and acquitted, and was subsequently arraigned before a court martial for an offence against military discipline involved in his criminal act, held that a plea of former trial interposed by him was properly overruled by the court. 65, 268, 269, June, 1894. 1See United States v. Perez, 9 Wheat., 579. 2See 6 Opins. At. Gen., 413, 506. Compare Macomb, § 159; O'Brien, 277; Rules for Bombay Army, 45; McNaughton, 132-133. 310. A soldier was convicted of "manslaughter," but the findings and sentence were disapproved. He was then brought to trial on a charge of mutiny, as committed on the occasion of the homicide, the latter being alluded to in the specification as an incidental circumstance of aggravation, and was found guilty and sentenced. Held that the accused was not, in the sense of this Article, "tried a second time for the same offence," the mutiny not consisting in the act of homicide but constituting a distinct offence. 26, 284, September, 1888. 311. There cannot, in view of this Article, be a second trial where the offence is really the same though it may be charged under a different description and under a different article of war. Thus, where the Government elects to try a soldier under the 32d Article for “absence without leave," or under the 42d for "lying out of quarters," and the testimony introduced develops the fact that the offence was desertion, the accused, after an acquittal or conviction, cannot legally be brought a second time to trial for the same absence charged as a desertion. 34, 401, August, 1889. Held, 312. It is not misrepresentation or concealment by an applicant for enlistment, but the procuring of his enlistment by means of misrepresentation or concealment, together with the receipt of pay or allowance, which constitutes the military offence of fraudulent enlistment under the act of Congress approved July 27, 1892. therefore, where a soldier was tried for and convicted of fraudulent enlistment in procuring his enlistment by means of a misrepresentation or concealment, that to again try him for the same enlistment on account of another misrepresentation or concealment subsequently discovered would be a second trial for the same offence within the meaning of this Article. Card 2768, January, 1897. 313. The reconsideration by a court martial of a finding, whether of guilty or not guilty, when duly reconvened for that purpose, is not a second trial within the meaning of this Article. The original and revised proceedings are merely parts of one and the same trial.' Card 5654, July, 1899. ONE HUNDRED AND THIRD ARTICLE. No person shall be liable to be tried and punished by a general court-martial for any offence which appears to have been committed more than two years before the issuing of the order for such trial, unless, by reason of having absented himself, or of some other manifest impediment, he shall not have been amenable to justice within that period. No person shall be tried or punished by a court-martial for desertion in time of peace and not in the face of an enemy, committed more than two years before the arraignment of such person for such offence, unless he shall S., 1 See 6 Opins. At. Gen., 200, 204, 7 id., 338; 18 id., 113; Swaim v. U. S., 165, U. 553. meanwhile have absented himself from the United States, in which case the time of his absence shall be excluded in computing the period of the limitation: Provided, That said limitation shall not begin until the end of the term for which said person was mustered into the service. 314. The "order for such trial," within the meaning of this Article, is the reference of the charges to the court for trial, and not the order appointing the court. Card 1646, August, 1895. 315. The mere fact that the offence was concealed by the accused and remained unknown to the military authorities for more than two years, constitutes no "impediment" in the sense of the Article.' XXI, 635, September, 1866; L, 633, August, 1886. 316. A mere allegation in a specification, to the effect that the whereabouts of the offender was unknown to the military authorities during the interval of more than two years which had elapsed since the offence, is not a good averment of a "manifest impediment" in the sense of the Article. XXXV, 640, October, 1874. 317. The liability to trial after discharge, imposed by the last clause of Art. 60, held subject to the limitation prescribed in Art. 103. XII, 481, 536, July and August, 1865; XV, 133, April, 1865; XXI, 4, November, 1865; XXVI, 670, July, 1868. And so held as to the liability to trial after the expiration of the term of enlistment, under Art. 48. XXXI, 384, May, 1871. 3 318. The prohibition of the Article relates only to prosecutions before general courts martial; it does not apply to trials by inferior courts. So, courts of inquiry may be convened without regard to the period which has elapsed since the date or dates of the act or acts to be investigated. XLII, 213, March, 1879. Nor does the rule of limitation apply to the hearing of complaints by regimental courts under Art. 30. XXXI, 452, June, 1871. 319. In view of this Article it is the duty of the Government to prosecute an offender within a reasonable time after the commission of the offence. 21, 156, December, 1887. 5 320. The limitation is properly a matter of defence to be specially pleaded and proved. 21, 156, December, 1887; 40, 476, May, 1890; 59, 278, May, 1893; 65, 346, June, 1894. accused is assumed to waive the right to special plea in bar. LVI, 75, April, 1888. 114 Opins. At. Gen., 52, 266–268. 214 Opins. At. Gen., 52. By a plea of guilty the plead the limitation by a But under a plea of not 3 See, to a similar effect, 13 Opins. At. Gen., 462; 15 id., 152; 16 id., 170; also, In re Bird, 2 Sawyer, 33. See 6 Opins. At. Gen. 239. 5 In re Bogart, 2 Sawyer, 396, 397; In re White, 17 Fed. Rep., 723; In re Davison, 21 Fed. Rep., 618; In re Zimmerman, 30 Fed. Rep., 176; G. O. 22 of 1893. And com pare U. S. v. Cooke, 17 Wallace, 168. |