tially sufficient under this general Article. XVI, 316, 551, June and September, 1865.

66

152. A charge of "conduct to the prejudice," &c., with a specification setting forth merely trials and convictions of the accused for previous offences, is not a pleading of an offence under this Article, or of any military offence. XXVII, 331, November, 1868. So of a charge of "habitual drunkenness to the prejudice," &c., with a specification setting forth instances in which the accused has been sentenced for acts of drunkenness. XXXIII, 175, July, 1872. Such charges indeed are in contravention of the principle that a party shall not be twice tried for the same offence. So, a specification under the charge of conduct to the prejudice," &c., which sets forth not a distinct offence but simply the result of an aggregation of similar offences, is insufficient in law. XXXVI, 432, May, 1875. Where the specifications to such a charge, in a case of an officer, set forth that the accused was "frequently" drunk, "frequently" absented himself without authority from his command, &c., held that these specifications were properly struck out by the court on the motion of the accused. In such a case the only correct pleading is a general charge under this Article, with specifications setting forth-each separately—some particular and specific instance of offence. XXXVIII, 211, August, 1876.

153. Ield that a specification alleging homicide, but not adding ** with malice aforethought," or in terms to that effect, was a pleading of manslaughter only and thus within this Article. XLVII, 385, July, 1884. 154. The withdrawing by a disbursing officer of the Army from an authorized depository of public funds for a purpose not prescribed or authorized by law-as for personal use, or to pay claims not due from the United Stattes or payable by such officer-being a form of embezzlement defined by section 5488, Rev. Sts., is properly charged as embezzlement under this article. XXV, 588, May, 1868; XXVII, 414, December, 1868; XXXIII, 291, 495, September and November, 1872; XXXVIII, 96, May, 1876. Though the offence may in terms be laid as a violation of the act of 1866 (5488, Rev. Sts.), it is, indeed, only a form of a charge of violation of the 99th (now 62nd) Article of War,' the act of Congress merely furnishing a definition of the

An examination of the opinions in the cases upon which the text is based discloses the fact that the distinction between the character of the general offence of embezzlement and the particular embezzlement defined in the act of June 14, 1866, now sec. 5488, Rev. Sts., is clearly set out and defined, the difference being so marked that it would be an error to charge the acts set out in the latter statute as a violation of the 60th article of war. These opinions were rendered with reference to the trials of officers, which trials were published in the following general court-martial orders of the War Department: 43, 86, of 1868; 27, 34, of 1872, and 7, of 1873.

In all of these cases, except the last one, the officers were tried, among other offences, for illegally withdrawing from the authorized depositories or applying to a purpose not authorized by law, money intrusted to them, and in each of these cases the money so withdrawn or misapplied was furnished or intended for the military

offence. The act, it may be added, furnishes also a measure of punishment which may properly aid, though it need not necessarily govern, service, but the offences were charged under the act of June 14, 1866, now sec. 5488, Rev. Sts., and not under what is now subdivision 9 of the 60th article of war.

The officer named in the last order was tried under the act of March 2, 1863, now the 60th article of war, for embezzlement, and not for any acts legitimately chargeable under the act of June 14, 1866.

In remarking upon the general offence of embezzlement as then set out in the 39th Article of War of the articles of 1806, and upon the embezzlement defined in the act of June 14, 1866, Judge-Advocate General Holt, in his opinion upon the case in G. C. M. O., 34, supra, says: * The court may well be supposed to have construed the 39th Article as contemplating an embezzlement or misapplication with fraudulent intent, and to have acquitted on the ground that there was upon the testimony a reasonable doubt as to the existence of such intent. But if this conclusion be accepted, the fact remains that no such construction could properly govern in connection with the other charge (embezzlement under the act of June 14, 1866. The statute of 1866, in view of which it was preferred, is the expression of extreme vigilance in regard to the proper use and disposition of the public moneys, found by the experience of the Government to have become imperatively necessary to be observed. It provides an additional safeguard of the public treasury by enacting that any disbursing officer who shall withdraw, transfer, or apply any of the public funds intrusted to him for any purpose not authorized by law shall be deemed guilty of a felonious embezzlement and be punished accordingly. The intent of the officer, whether innocent or fraudulent, enters in no manner into the statutory offence. If his act of withdrawal, application, etc., of the funds is simply one not authorized by existing law, he is guilty of the crime here defined by Congress. His intent, if innocent, may perhaps be considered in mitigation of punishment, but can not be relied upon as a legal bar against conviction. The offence created by this act belongs to the class known as mala prohibita, but it is upon the repression of this class of offences that the safety of the public treasury largely depends."

In the publication to the Army of this case, the Secretary of War, approving the views of Judge-Advocate General Holt, said: "In the opinion of the Secretary of War, they might well have convicted the accused of at least a portion of the charged violations of the act of June 14, 1866 (now sec. 5488, Rev. Sts. ), a statute enacted for the more complete protection of the Treasury, * and which without regard to the intent of the offender denounces all withdrawals from a public depository or dispositions of public moneys not authorized by express law.”

* *

As a rule, therefore, acts defined in sec, 5488, Rev. Sts., have been brought to trial as embezzlement under this section in violation of the 624 article of war, and not under the 60th article of war.

See in this connection in addition to the cases already cited those published in the following general court-martial orders (War Department): 5, of 1869; 21, 58, 81, of 1874; 52, of 1877; 5, of 1881; 30, of 1883.

See also S. O. 172, A. G. O., of 1899 (order publishing case of Capt. O. M. Carter, Corps of Engineers). See further, O. M. Carter . McLaughry (105 Fed. Reporter, p. 614). In the latter case the court, inter alia, said: "It is also contended that under the sixty-second article of war no charge can be preferred that is embraced in any other article, and that as the charge is that of embezzlement it is covered by either the first, fourth, or ninth paragraph of the sixtieth article of war. Assuming, but not deciding, that no charge can be laid under the Sixty-second Article of War if it is mentioned in any preceding article, still it is apparent that the embezzlement defined in section 5488, Revised Statutes, is not the offence denounced in either the first or fourth paragraph referred to, and I am also of the opinion that it is a species of embezzlement different from that defined in the ninth paragraph of the Sixtieth Article of War, since the money which is the subject of embezzlement under the latter article is money 'furnished for military service,' whereas under section 5488, the term 'money' comprehends any public money, whether appropriated for the military service or for other purposes. The offence denounced in section 5488 is much broader and more comprehensive than the other, the former being the application by a disbursing officer of money to any unauthorized purpose, whilst under the ninth paragraph mentioned the money which is the subject of the embezzlement is money appropriated specifically for the military service, and it is quite probable from the context of the entire paragraph that the term 'embezzlement,' as there employed, means such an offence as is generally understood where one having the money of another in his custody appropriates it to his own use with felonious intent, intending to deprive the true owner thereof.”

the discretion of a court martial in imposing sentence. XXXIII, 495, November, 1872. But held, that to constitute such embezzlement it is not necessary that there should have been a personal conversion of the funds or an intent to defraud. The object of the law is to provide a safeguard against the misuse and diverting from their appointed purpose of public moneys, and the intent of the offender, whether fraudulent or not, enters in no respect into the statutory crime.1 If the withdrawal or application of the funds is simply one not prescribed or authorized by law, the offence is complete. XXV, 588, May, 1868; XXVII, 116, July, 1868; XXXIII, 494, November, 1872; XXXVIII, 96, May, 1876. An absence, however, of criminal motive in the illegal act may be shown in mitigation of sentence in a military case. XXXIII, 494, supra. So, held, that it constituted no defense to a charge of an embezzlement of this class (though it might be shown in mitigation of punishment) that the officer had restored to the public depository the funds illegally withdrawn by him before a formal demand was made for the same. XXV, 588, 8upra.

155. It is a defence to a charge (under this Article) of the embezzlement defined in Sec. 5490, Revised Statutes, as consisting in a failure to safely keep public moneys by an officer charged with the safekeeping of the same, that the funds alleged to have been embezzled were, without fault on the part of the accused, lost in transportation or fraudulently or feloniously abstracted. I, 435, November, 1862.

156. In view of the injunction and definition of Secs. 3622 and 5491, Rev. Sts., an officer who, in his official capacity, receives public money (not pay or an allowance) which he fails duly to account for to the United States, is guilty of embezzlement. The statute makes no distinction as to the sources from which the money is derived or the circumstances of its receipt. Nor is it material whether or not the officer actually converted it to his own use or what was the motive of his disposition of it. So held that an officer who, having claimed and exacted certain moneys of the United States from government contractors, failed to pay the same into the Treasury, or to duly account therefor, was guilty of embezzlement under this Article. 52, 138, February, 1892.

157. Where an officer allowed to an enlisted man and paid to him, out of certain public funds consisting of the proceeds of a public sale of condemned quartermaster stores, an amount of ten per centum on the total of such proceeds, as a compensation for the services of such man as auctioneer at the sale, held that such payment was illegal and unau

1 See remarks of the Secretary of War in G. C. M. O., 34, War Department, 1872, quoted in preceding note.

2 Compare 14 Opins. At. Gen., 473.

thorized' and constituted an embezzlement of public money chargeable under this Article. 59, 201, April, 1893.

158. Whether acts committed against civilians are offences within this Article is a question to be determined by the circumstances of each case, and in regard to which no general rule can be laid down. If the offence be committed on a military reservation, or other premises occupied by the army, or in its neighborhood so as to be so to speak-in the constructive presence of the army; or if committed by an officer or soldier while on duty, particularly if the injury is done to a member of the community whom the offender is specially required to protect; or if committed in the presence of other soldiers, or while the offender is in uniform; or if the offender use his military position or that of another for the purpose of intimidation or other unlawful influence or object-the offence will in general properly be regarded as an act prejudicial to good order and military discipline and cognizable by a court martial under this Article. The judgment on the subject of a court of military officers, experts as to such cases, confirmed by the proper reviewing commander, should be reluctantly disturbed. XLIX, 268, August, 1885; 28, 207, November, 1888; 34, 381, August, 1889; 36, 151, October, 1889.

159. The following offences have been held properly charged or chargeable under this Article, as disorders or neglects "to the prejudice of good order and military discipline:" Drunkenness or drunken and disorderly conduct, at a post or in public, committed by a soldier or officer when not "on duty," and when the act (in the case of an officer) does not more properly fall within the description of Art. 61. I, 463, December, 1862; VIII, 366, May, 1864; XXIV, 79, December, 1866; XXVIII, 575, May, 1869. Escape from military confinement or custody (where not amounting to desertion--see $ 1057. post.) X, 574, November, 1864. Breach of arrest (where not properly chargeable under Art. 65). XXIX, 175, August, 1869. Disclosing a finding or sentence of a court martial in contravention of the oath prescribed in Art. 84 or 85. XXI, 628, September, 1866. Refusal by an officer or soldier to testify, when duly required to attend and give evidence as a witness before a court martial. XLII, 596, April, 1880. Joining with other inferior officers of a regiment in a letter to the colonel, asking him to resign. XLI, 226, May, 1878. Neglecting, by a senior officer "present for duty" with his regiment, to assume the command of the same when properly devolved upon him, and allowing such command to be exercised by a junior. XI,

See opinion of the Second Comptroller of the Treasury published in Circ. No. 3, A. G. O., 1894.

See par. 7, p. 17, Court-Martial Manual of 1901.

172, November, 1864. Culpable malpractice by a medical officer in the course of his regular military duty. II, 378, May, 1863. Colluding with bounty brokers in procuring fraudulent enlistments to be made. and bounties to be paid thereon. XIV, 326, May, 1865. Violations, by an officer, of army regulations,' in bidding-in and purchasing, through another party, public property sold at auction by himself as quartermaster; also, in purchasing subsistence stores, ostensibly for domestic use, but really for purposes of traffic. XXXIX, 283, November, 1877. Causing (by a quartermaster) troops to be transported upon a steamer known by him to be unsafe. XV, 301, June, 1865. Paying money due under a contract (for military supplies) to a party to whom, with the knowledge of the accused, the contract had been transferred in contravention of Sec. 3737, Rev. Sts. XLII, 44, November, 1878. Inciting (by an officer) another officer to challenge him to fight a duel. XXVIII, 650, June, 1869. Assuming (by a soldier) to be a corporal in the recruiting service, and as such enlisting recruits and obtaining board and lodging for himself and recruits without paying for same. XXXIX, 229, October, 1877. Procuring (by a soldier) whiskey from the post trader by forging an order for the same in the name of a laundress. XXXVII, 270, January, 1876. Breach of faith (by a soldier) in refusing to pay the post trader for articles obtained on credit, upon orders on him which had been guaranteed or approved by the company commander upon the condition that the amounts should be paid on the next pay-day. XXVII, 282, September, 1868; 563, March, 1869; XXVIII, 298, January, 1869; XXIX, 574, January, 1870. Gambling by officers or soldiers under such circumstances as to impair military discipline (where the conduct, in the case of an officer, does not rather constitute an offence under Art. 61). XXXI, 404, May, 1871. Striking a soldier, or using any unnecessary violence against a soldier-by an officer. 39, 25, February, 1890. Neglect on the part of an officer of engineers to oversee the execution of a contract for a public work placed under his charge, the due fulfillment of such charge being a military duty. 31, 357, April, 1889. A public criticism in a newspaper, by an officer, of a case which had been investigated by a court martial and was awaiting the action of the President. L. 86, March, 1886. Assuming, by an officer, to copyright as owner, and thus asserting the exclusive right to publish, in an abridged form, the Infantry Drill Regulations, property of the United States, and the formal official publication of which had already been announced in orders by the Secretary of War. 50,373, December, 1891; 1 Violations of Army Regulations in general are properly chargeable as neglects (or disorders) to the prejudice of good order and military discipline.

2 See Runkle r. U. S., 19 Ct. Cls., 396, 411, 412.

2