the legality of the finding or sentence in the case. XXII, 502, Decemher, 1866; XXVI, 167, November, 1867.

720. A withdrawal of charges constitutes no legal bar to their being subsequently revived and re-preferred. Charges, however, once formally withdrawn, will not in general properly be revived except upon new material evidence being obtained. XI, 202, December, 1864; XXVIII, 370, February, 1869. Charges once accepted as a sufficient basis for action, by the commander competent to convene a court for their trial, cannot properly be withdrawn except by his authority.' XXI, 56, November, 1865.

721. A list of the proposed witnesses is no part of the military charge, though such a list may properly be and is not unfrequently appended to a charge. In serving upon the accused a copy of the charges, it is not essential, though the better practice, to add a copy of the list of witnesses where one is appended to the original charges. XXV, 350, February, 1868.

722. It is a reprehensible practice to allow charges to lie long dormant before being preferred. Charges should not be delayed but should be brought to trial as soon as practicable and while the evidence is fresh; a delay of five months being remarked upon as prejudicial to the administration of justice and unfair to the accused. 24, 283, May,

1888.

723. Charges, though prepared in the Office of the Judge-Advocate General, are not in practice signed by him. If not signed by the officer actually preferring them, they will properly be authenticated by the signature of the acting judge advocate of the department, or, preferably, by the judge-advocate of the court. XLVII, 521, September, 1884; 60, 257, June, 1893.

724. An objection that a charge is not signed should be taken at the arraignment-when the omission may be supplied by the judge advocate's affixing his signature. By pleading the general issue the accused waives the objection. 59, 258, May, 1893.

725. But, to be taken cognizance of by the court, it is not essential

How far charges may be amended by the judge advocate before the organization of the court depends mainly upon his authority, general or special, to make amendments. See § 1532, post. After the arraignment, amendments of form may always be made, with the assent of the accused or by the direction of the court; and so may slight amendments of substance not so modifying the pleading as to make it a charge of a new and distinct offence. An amendment so substantial as materially to modify the "matter" before the court, will not in general be authorized (see EIGHTY-FOURTH ARTICLE), and any amendment whatever of substance should be allowed by the court with caution and subject to the right of the accused to apply for a continuance. See NINETY-THIRD ARTICLE. As to the authority of the court or judge advocate to strike out or withdraw a charge or specification, see §§ 999, 1532, and 1797, post.

*Appending such a list does not preclude the prosecution from calling witnesses not named therein.

that a charge should be signed by any officer. If, though not so signed, it be duly officially transmitted by the convening commander, or other competent superior authority, to the court-either directly or through the judge-advocate-"for trial," or "for the action of the court," or in terms to such effect, it is sufficiently authenticated for the purposes of trial, and trial upon it may be proceeded with by arraignment thereon of the accused. LV, 369, March, 1888; XXX, 489, July, 1870; 59, 258, May, 1893; Card 3913, April, 1898.

726. A charge expressed in too general terms is faulty and imperfect: the accused is entitled to know for what particular act he is called to account. Thus a specification under Art. 62, in a case of an officer, which set forth, not a specific act of offence, but an habitual course of conduct as incapacitating the accused for service or for the performance of his proper duty, held seriously defective and subject to be stricken out on motion. For such conduct indeed the remedy is not by charge and trial but by retirement under Sec. 1252, Rev. Sts. L. 469, January, 1886.

727. A charge expressed in the alternative-either under Art. 17 or Art. 60-is irregular and defective, and, upon motion, may be stricken out or required to be amended. LI, 248, December, 1886; 297, January, 1887.

728. The order fixing maximum punishments prescribes different limits of punishments for wilfully and for negligently allowing (by an enlisted man) a prisoner to escape, as separate offences, under the 62d Article of war. A charge for suffering an escape under this Article should therefore indicate in the specification whether the act is alleged to be wilful or negligent only. 48, 220, July, 1891.

729. The allegation of time in a specification should be as nearly defined as the facts will permit; but where the act or acts charged extended over a considerable space of time, it may be necessary to cover such period in the allegation. Thus allegations of "from March to September, 1887," and "from May to October, 1888," have been countenanced in a case in which the accused was charged with the neglect of a duty the performance of which was thus continuous.1 31, 357, April, 1889.

730. A middle name or initial is no part of a person's name in law, and, except where it is necessary to identify the individual, may be omitted from the charge without affecting the validity of the finding or execution of the sentence. 34, 400, August, 1889. So, a misnomer in a charge, consisting of an erroneous middle name or initial, may be disregarded in a charge unless the accused moves to strike out or

'See G. C. M. O. 21, A. G. O. of 1889.

interposes an objection, in the nature of a plea in abatement, when he must also state his true name. The charge may then be amended accordingly in court, without delaying the proceedings. LII, 675, October, 1887.

731. A material amendment of a charge should properly be made before the actual trial. Where a court martial, after the trial was concluded, directed a specification to be amended so as to render it more definite as to time and place, and then caused the accused to be arraigned and to plead over again, nunc pro tune, held that its action was without sanction of law or precedent. XLVIII, 315, Ebruary, 1884.

732. A failure, at the arraignment, to take notice of a variance between the form of a specification to which the accused is called upon to plead and such specification as it appeared in the copy of the charges served at his arrest, is a waiver of the objection, and the same cannot be taken advantage of at a subsequent stage of the proceedings. 64, 172, March, 1894.

733. The statement as to enlistments, discharges, &c., required, by the Army Regulations, to be furnished with the original charge to the convening authority, is not intended to be accompanied by a declaration, on the part of the commanding officer of the accused, as to his present character. The regulation does not call for the officer's opinion on the subject, or contemplate that the character of the accused will be taken into consideration at this time. 39, 459, March, 1890; 43, 10, September, 1890.

CHIEF MUSICIAN.

734. A chief musician" is not an officer but an enlisted man (see act of March 3, 1869, c. 124, s. 5; and Sec. 1342, Rev. Sts.); and, not being (like a hospital steward or ordnance sergeant-par. 895, Army Regs. of 1863) specially exempted from trial by a regimental or garrison court, is subject to the same, for offences within the jurisdiction of such court, equally as to trial by a general court martial. XXXI, 212. March, 1871.

735. The chief musician of a regiment is an enlisted man, but not a non-commissioned officer. He is also enlisted, not to perform the duties of a soldier, but expressly as an "instructor of music." (Act of March 3, 1869, c. 124, s. 5; Secs. 1099, 1102, 1106, Rev. Sts.) So held that he could not legally be reduced to the ranks, either by sentence or by order.' XXXIII, 33, May, 1872.

Compare now act of March 2, 1899, published in G. O. 36, A. G. O., 1899.

CITIZENSHIP.

736. The mere enlistment and honorable discharge of an alien as a soldier of our army do not per se constitute him a citizen of the United States. He must still make formal petition to one of the courts, &c., specified in Sec. 2165, Rev. Sts., and present thereupon the evidence required by Sec. 2166. LV, 167, December, 1887.

737. A native-born minor is a citizen of the United States under the XIVth Amendment of the Constitution. Card 181, August, 1894.

CIVIL SUIT OR PROCESS AMENABILITY OF MILITARY TO.

738. Idd, on the analogy of the principle protecting an officer's pay from being taxed by the authorities of a State (see TAX), that the necessary and proper baggage of an officer travelling on duty, of not greater amount than allowed by the Army Regulations to be transported with him at the public expense, was properly exempt from attachment in a suit for a private debt. An officer, however, can not be allowed to claim such an exemption to an unreasonable extent. and should he assume to transport or procure to be transported with him any considerable amount of baggage greater than that permitted by the regulations, he would justly become liable to the consequences of the abuse of his privilege. In such a case he could not claim to be sustained by the government in resisting an attachment or execution levied upon his effects. XXXV, 484, July, 1874.

739. I that the personal property of an officer required to be po-sessed and used by him in the regular performance of his military duties as, for example, his sword, or, in a case of a mounted officer, his horse-could not legally be seized upon an attachment or execution issued in a suit brought in a State court. XXXIII, 8, March, 1872. 740. The legality of the service, at a military post, of process issued in a suit or prosecution instituted in a State court depends (as to itoriginal authority) upon the question whether the sovereignty of the soil resides wholly in the United States (either by virtue of a reservation of the same by the United States upon the admission of the State. or of its subsequent surrender by the State) or is shared by the State government. Where, by an act of consent or cession of the legis lature of a State in which a military reservation or post is situated. exclusive jurisdiction over the same has become unconditionally vested

See act of Aug. 1, 1894, which prescribes that "in time of peace no person (except an Indian) who is not a citizen of the United States, or who has not made legal declaration of his intention to become a citizen of the United States shall be enlisted for the first enlistment in the army.”

in the United States, as contemplated by Art. I, Sec. 8 cl. 17 of the Constitution, no process issued from the State courts can legally be served thereon, but only process issued from courts of the United States can be there executed. Where, however, in ceding jurisdiction, the State has reserved to itself the right, not unfrequently reserved under the circumstances (and which it is often for the advantage of the United States to have reserved, since otherwise the post might become an asylum for criminals-see CESSION OF JURISDICTION) to serve within the premises civil and criminal process on account of rights accrued, obligations incurred, or crimes committed in the State but outside of the premises, then the writs of the State tribunals may be executed on the land in the class of cases thus excepted. Of course where there has been no cession of jurisdiction by the State, its officials have the same authority to serve the process and mandates of its courts, and its courts have the same jurisdiction over acts done and crimes committed within the military post as elsewhere in the State: the mere fact of the ownership or occupation of the land by the United States having no effect to except it from the operation of the State laws. XVI, 514, August, 1865; XXI, 567, July, 1866; XXXIII, 8, March, 1872.

741. Where a military post or reservation is situated in a Territory, the Territorial courts are authorized to issue process for the arrest of officers or soldiers of the command charged with crime, or to cite them to appear before them as defendants in civil actions, or to attach, replevy upon, or take in execution any property belonging to them within the posts, &c., not specially exempted from legal seizure. This for the reason that the courts in which is vested the judicial power of a Territory are not the courts of a sovereignty distinct from the United States but are the creatures of Congress, being established by it directly, or indirectly by its authority through the Territorial legis lature, under the provision of the Constitution (Art. IV, Sec. 3, par. 2), empowering Congress "to make all needful rules and regulations respecting the Territory belonging to the United States." Thus while officials charged with the service of the process of such-as indeed of any-courts would, in comity, properly refrain from entering a military post for the purpose of serving process therein, or at least from making the service, till formal permission for the purpose had been sought and obtained from the commanding officer, yet, on the other

1See CESSION OF JURISDICTION and authorities cited.

***A Territory is not properly sovereign. It is an organization through and by means of which Congress for a time governs a particular portion of the country. Its rights are those which are set forth in the organic act." (16 Opins. At. Gen., 114, 115.)