1401. Forfeiture by sentence of a summary court is operative only on pay accruing after approval of the sentence unless otherwise specified in the sentence. Card 2791, December, 1896.

1402. In a sentence of forfeiture of "all pay due " (or "all pay now due"), imposed with dishonorable discharge, to add "or to become due" would give no further effect to the sentence. Otherwise where forfeiture is adjudged alone, unaccompanied by dishonorable discharge: there the term "or to become due" would forfeit pay falling due after the date of the promulgation of the approval and while the soldier remained in service. 46, 8, March, 1891.

1403. A sentence "to be dishonorably discharged from the service of the United States, forfeiting all pay and allowances," has the same meaning that it would have if the words "due him" were added after the word "allowances."1 Card 3009, March, 1897.

1404. A forfeiture remitted upon approval does not take effect. So where a forfeiture of pay adjudged a deserter was, upon the approval of his sentence, remitted by the reviewing authority, held that he was entitled to pay from the date of his arrest or surrender and return to military control-the date at which a deserter (A. R. 131; 142 of 1901) is **considered as again in service," or rather resumes his service. L, 317, May, 1886.

1405. Where a soldier was sentenced to be dishonorably discharged, forfeiting all pay and allowances, and to be confined for three. months," and the dishonorable discharge was remitted in approving the sentence, held that the forfeiture was evidently intended to relate to pay due at the date of discharge, and that, as the discharge had been remitted, the forfeiture could apply only to pay due at the date of the receipt at the post of the order publishing the sentence. LI, 176, December, 1886.

1406. Where a sentence of forfeiture of ten dollars per month for a certain number of months was remitted thirteen days after promulgation, held that the forfeiture not affected by the remission was to be executed by stopping against the soldier's pay the thirtieth part of ten dollars for each and every day prior to the remission. LV, 227, December, 1887.

1407. As prescribed in paragraph 952, A. R. (1051 of 1901), an order remitting a forfeiture of pay operates only on the pay which becomes due subsequent to the date of the order; in other words the regulation is based upon the assumption that the forfeiture becomes fully executed each day as to that day's pay. Card 2332, June, 1896; 5411, December, 1898; 5883, 5898, February, 1899; 6311, April, 1899. 1408. Where a forfeiture of ten dollars per month for three months

'See Circular 6, A. G. O., 1897.

of justice, not for the purpose of relieving the accused of any of his due share of culpability. It should not therefore be resorted to where the specific offence charged is substantially made out by the testimony. Thus in a case where the facts set forth in the specification to a charge of "conduct unbecoming an officer and a gentleman,” and clearly established by the evidence, fixed unmistakably upon the accused dishonorable behavior compromising him officially and socially,-held that a finding by the court that he was guilty only of "conduct to the prejudice of good order and military discipline" should not be approved; in such a case the court should be reconvened for the purpose of inducing, if practicable, a finding in accordance with the facts and with jus tice. XXX, 495, July, 1870.

1364. Where, upon the finding, the vote on a charge or specification is tied, the accused is, in law, found not guilty thereon; a majority vote being necessary to any conviction. XXXI, 610, August, 1871; XXXII, 126, November, 1871; XLV, 334, June, 1882; Card 2003, January, 1896. A statement in the record to the effect that the vote upon a specification, &c., was a tie and that the accused was therefore acquitted, is of course irregular and improper. XXXII, 126, supra.

1365. It is an important part of the judgment of the court, in a case where the evidence is conflicting, to determine the measure of the credibility to be attached to the several witnesses. In its finding, therefore, the court may, in connection with the testimony, properly take into consideration the appearance and deportment of, the witnesses on the stand, and their manner of testifying especially when under cross-examination.' XXX, 383, 447, May and June, 1870.

1366. In a case where a court-martial made such exceptions and substitutions in its finding upon the specification to a charge of "Forgery to the prejudice of good order and military discipline" as to negative the material allegation of false writing, held that there was no legal basis for the finding arrived at of guilty of the charge. 31, 117, March, 1889.

1367. Held that a finding, under a charge of desertion, of not guilty of desertion but guilty of a violation of the 40th Article of War, was not allowable and should be disapproved; the offence made punishable by that article-quitting guard, &c.— not necessarily being or involving an absence-without-leave in the military sense, and the finding not being necessarily a conviction of the absence-without-leave contained in desertion. LVII, 22, October, 1888.

1See § 2232, post, and compare Callanan r. Shaw, 24 Iowa, 441.

That a court cannot arbitrarily disbelieve and reject from consideration the statement, duly in evidence, of a witness, not clearly shown to have perjured himself, is held in the case of Evans e. George, 80 Ills., 51.

1368. Upon a proposed enactment providing that the members of ourts martial be allowed, at their own request, to have their individual otes upon the finding or sentence entered upon the record, advised at the same be not favored by the Secretary of War. Such a proeding would indeed relieve self-respecting members from being impliated in an unjust or irrational finding or sentence, but it would mateally impair the effect of the judgment of the court if the composition f the vote were to be thrown open to scrutiny and discussion. The roceeding indeed might readily, contrary to the spirit of the 84th Artie, disclose the votes of all the members-as where, in a court of nine, our requested a record of their personal votes. 63, 263, January, 94.

FINE.

1369. The only fine known to military law is the fine authorized to -imposed by way of punishment by sentence of court martial. No ilitary commander is empowered under any circumstances to impose fine upon an officer or a soldier. VIII, 444, May, 1864.

1370. A fine is distinguished from a "stoppage." The former is a nishment and therefore imposable only by court martial. The latr is a charge on account, being an enforced reimbursement, by means of lebit entered against the pay of the party on the rolls, either for an mount due the United States-as for the value of public property t, extra clothing issued, reward paid for apprehension as a deserter, .- or for an amount due an individual and expressly authorized law or regulation to be thus charged.' XXXV, 457, July, 1874; , January, 1890.

1371. Fines adjudged by courts martial accrue to the United States. court martial cannot impose a fine for the benefit of an individual, r can a fine adjudged in general terms be in any part appropriated the benefit of an individual by executive authority. VII, 52, 643 wuary and May, 1864; VIII, 632, June, 1864. A court martial, in tencing a party to pay a fine, has no authority to direct the collecn of the same by a provost marshal, or by any compulsory process: h a direction added in a sentence should be disregarded as mere plusage. VIII, 298, April, 1864.

1372. An officer on trial applied to have certain witnesses summoned -m a distance and a continuance granted to await their appearance. this the court consented on his making an affidavit setting forth terial matter expected to be established by the witnesses. When e appeared it was found that they could give no material testimony

1 See par. 1390, Army Regulations (1568 of 1901), and § 79, ante.

was imposed upon a soldier (in the first year of his enlistment), held that this could not be executed by forfeiting thirty dollars in one sum when so much had aggregated as pay due, but that, as his available monthly pay was nine dollars only (four dollars being retained under the act of June 16, 1890), the execution would be best managed by remitting one dollar for each month included in the sentence. 63, 54, December, 1893.

1409. Pay for a certificate of merit, like pay for continuous service, has always been held to be a part of the soldier's pay and as such subject to forfeiture by sentence of a court martial. Card 1308, April, 1895.

FORGERY.

1410. A disbursing officer who pays out money of the United States upon vouchers that are forged will in general make himself liable for the amount paid. Thus where such an officer paid out public money upon transportation requests, addressed to a railroad company and accepted by it, which requests had been fraudulently prepared by a quartermaster's clerk who had forged the name of the quartermaster thereto, held that the disbursing officer was responsible for the amount paid. 56, 208, October, 1892.

1411. A paymaster drew his check in favor of a discharged soldier for the amount due him on final settlement. The payee endorsed the check in blank, and the paymaster then, according to a common practice, sub-endorsed it, adding his official designation, merely for the purpose (though the endorsement did not so state), of identifying the signature of the payee. The writing in the body of the check was then removed or altered and the check filled in for a very much greater amount. The check thus raised was on the next day presented to and paid by the Assistant Treasurer at New York. Held that, while, in the hands of a bona-fide endorsee, the liability of the paymaster would have been that of a regular endorser, parol evidence not being then admissible to show that he endorsed merely for identification,' yet the loss in this case legally fell upon the Assistant Treasurer whose liability was the same as that of a bank which pays a forged check in a case in which the forgery has not been facilitated by the negligence of the drawer. 53, 312. May, 1892.

FRAUDULENT ENLISTMENT.

1412. This offence (constituted and made punishable as a violation of Art. 62, by the act of July 27, 1892, c. 272, s. 3) is defined in

1 Daniel on Negotiable Instruments, vol. 1, p. 719, and cases cited.

2 Byles on Bills (Sharswood's edition), 337, and cases cited.

Circ. No. 13, A. G. O. 1892. The misrepresentation or concealment characterizing it must have induced the enlistment of the soldier and must have related to a fact which if known would have caused his rejection. Where the offence consisted in his having concealed the fact that he had been discharged with a questionable character-viz., "very good except when intoxicated, then bad"-held that such offence was chargeable as "fraudulent enlistment," provided the knowledge of this fact on the part of the recruiting officer would have prevented the enlistment. 63, 153, January, 1894.

1413. A fraudulently enlisting soldier, may be disposed of in either of two ways, viz., he may be brought to trial for his offence under the statute, or he may be discharged "without honor." If brought to trial and convicted, and his sentence does not include dishonorable discharge (as it need not do under the order prescribing a maximum punishment for this offence), held that the Government could not properly also summarily discharge him. While it might have resorted to either course, it would scarcely be just to subject the offender to both. 60, 174, June, 1893.

1414. The enactment of the law making fraudulent enlistment a military offence, did not take it out of the law of contracts. Fraudulent enlistment has a two-fold character-criminal and civil. In the latter character it is a fraudulent contract which may be avoided, and when a contract is avoided for fraud, the party committing the fraud has no right to the benefits of the contract. Paragraph 1519, A. R. (1386 of 1895; 1564 of 1901) simply carries out this principle. It is therefore legal under this regulation to summarily discharge a fraudulently enlisted soldier with loss of all pay and allowances, instead of bringing him to trial. 58, 318, March, 1893.

1415. A fraudulent contract of enlistment is not void but voidable only at the option of the Government. The Government, on becoming cognizant of the fraud, may avoid the contract, or waive the objection and allow it to stand-in which latter case the accepted service is as legal as that of any other soldier. Where the fraudulent character of an enlistment contract did not become known until after a part of it had been executed, held, that while the same, as to its unexecuted portion might legally then be avoided and terminated, yet, as to the part executed, it was a valid contract, and the soldier could not lawfully be required to refund money paid for that part. 55, 183. August, 1892; Cards 355, 359, September, 1894; 494, October, 1894; 1624, August, 1895; 2022, January, 1896; 2717, November, 1896; 6398, May, 1899.

1416. There is a distinction between a fraudulent contract of enlist

See Court-Mar. Manual (1901), page 14, note 4. 16906-01-25