MURDER.1 1750. The taking of the life of a prisoner of war, when not concerting an escape or engaging in any violence or breach of discipline justifying such an extreme measure, is as fully murder, as could be any homicide committed with deliberate malice in time of peace. VII, 360, March, 1864. MUSTER-IN. 1751. The record of a formal muster-in is an official record, duly made by the proper officers pursuant to law, of an official act performed under the law. It is therefore, in the absence of fraud, conclusive evidence of the facts recorded, and no other evidence is admissible to show a different state of facts. Great uncertainty would ensue could such records be set aside by parol or other evidence. 60, 394, July, 1893. 1752. A muster-in is not necessarily formal. A mere enrolment is not a muster-in, and does not place the party in the military service. But taking up a man's name upon the rolls and accepting his services as a soldier is a constructive muster-in. 41, 136, June, 1890; Card 186, August, 1894. 3 1753. In March, 1864, a company which had been enrolled as a company of Tennessee volunteer cavalry, having, under orders, rendezvouzed at Fort Pillow, was given permission by the department commander to go to Memphis, Tenn., to be mustered into the United States service. But owing to the fact that Fort Pillow was threatened by the enemy, at that time, the company was ordered to remain and assist in its defence and was thus prevented from taking advantage of 1Murder, at common law, is "the unlawful killing, by a person of sound memory and discretion, of any reasonable creature in being and under the peace of the State, with malice aforethought either express or implied." In many of the States, two or more degrees of murder are now distinguished by the statute law; murder in the first degree generally defined as a killing accompanied by express malice, or a deliberate unlawful intent to cause the death of the particular person killed-being ordinarily alone made capital. Manslaughter, at common law, is distinguished from murder by the absence of malice aforethought. The State statutes have generally constituted degrees of manslaughter, also, a different measure of punishment being assigned to each degree. The laws of the United States, though prescribing different punishments for manslaughter under different circumstances, recognize no discriminations of grades in either manslaughter or murder. See Coke, Inst. 47; 4 Bl. Com. 95; 1 East, P. C. 214; 1 Russell, Cr. 482; 1 Gabbett, 454; 2 Wharton, Cr. L. § 930; 3 Greenl. Ev. § 130; Commonwealth v. Webster, 5 Cush. 304; G. O. 23, Dept. of California, 1865 (Remarks of Maj. Gen. McDowell). "Murder, originally," says Foster (p. 302, citing Bracton "de murdro"), was "an insidious secret assassination; occulta occisio, nullo sciente aut vidente." Now, secrecy in the commission of the act is significant only as evidence of legal malice. While it is lawful to kill an enemy "in the heat and exercise of war," yet "to kill such an enemy after he has laid down his arms, and especially when he is confined in prison, is murder." State v. Gut, 13 Minn., 341. That it is not necessary to formally muster-in drafted men or their substitutes, see §§ 1229 and 1231, ante. As to commencement of service of volunteer officers, see opinion of Atty. Gen., dated Feb. 27, 1901. the permission given it. A request was then made that a mustering officer be sent to Fort Pillow to muster in the company, but before one could arrive the fort was captured. Only a few of this company escaped death and they were taken away as prisoners of war. These survivors it appears were "changed" on the records to another company of another regiment of Tennessee cavalry, and there remained until final muster-out. Id that the foregoing facts constitute a striking instance of an actual entrance into the military service of the United States in the absence of and without a formal muster-in, and that the company should be viewed as having been regularly in such service at the time it was broken up. Card 1067, April, 1895. 1754. All the records of the company referred to in the preceding section were lost when Fort Pillow was captured. The captain who recruited the company made out a roll of it from memory in 1867. The persons whose names are borne on it or their heirs were paid on it at the time it was made out, and it has been used for some purposes in the War Department. In view of the fact that the roll was made by the person who enlisted the men and as a record of that enlistment, it should be accepted as prima facie evidence of the facts recorded therein, notwithstanding it was not made at the time of the enlistment. Whenever it is shown by other records made at the time of the occurrence of the things recorded that the roll is incorrect in any particular, it should be corrected accordingly. But as long as it is the only evidence obtainable, or the best evidence of a given fact, it may properly and legitimately be used to establish the fact. Card 1067, April, 1895. MUSTER-OUT. 1755. The muster-out is a formal discharge from the army, making the soldier a civilian, and terminating all military authority and jurisdiction over him.' The fact that the United States may (as by Sec. 1290, Rev. Sts.) provide transportation to their homes and subsistence en route for soldiers after muster-out, does not continue them in the military service. Sec. 4701, Rev. Sts., defines the period of service of soldiers with reference to the application of the pension laws, but not otherwise. 65, 105, May, 1894. 1756. An officer or soldier actually serving to a given date cannot legally be mustered out or discharged as of a prior date. 44, 450, January, 1891; 46, 101, 223, 243, March and April, 1891; 51, 126, December, 1891; Card 8962, September, 1900. But where certain volunteer officers duly absent from their commands were on May 6, As to the effect of the concluding provision of the 60th Article of War, see note to § 117, ante. MURDER.1 1750. The taking of the life of a prisoner of war, when not concerting an escape or engaging in any violence or breach of discipline justifying such an extreme measure, is as fully murder, as could be ar homicide committed with deliberate malice in time of peace. VII, 36 March, 1864. MUSTER-IN. 2 1751. The record of a formal muster-in is an official record. made by the proper officers pursuant to law, of an official act perf under the law. It is therefore, in the absence of fraud, conclusi dence of the facts recorded, and no other evidence is admissible t a different state of facts. Great uncertainty would ensue cou records be set aside by parol or other evidence. 60, 394, Ju' 1752. A muster-in is not necessarily formal. A mere enrol not a muster-in, and does not place the party in the military But taking up a man's name upon the rolls and accepting his as a soldier is a constructive muster-in. 41, 136, June, 1 186, August, 1894. 1753. In March, 1864, a company which had been enrolle pany of Tennessee volunteer cavalry, having, under ord vouzed at Fort Pillow, was given permission by the commander to go to Memphis, Tenn., to be mustered int States service. But owing to the fact that Fort Pillow w: by the enemy, at that time, the company was ordered t assist in its defence and was thus prevented from taking Murder, at common law, is "the unlawful killing, by a person and discretion, of any reasonable creature in being and under the 1with malice aforethought either express or implied." In many more degrees of murder are now distinguished by the statute first degree generally defined as a killing accompanied by ex deliberate unlawful intent to cause the death of the particular ordinarily alone made capital. Manslaughter, at common law, murder by the absence of malice aforethought. The State st. constituted degrees of manslaughter, also, a different measure assigned to each degree. The laws of the United States, thoug punishments for manslaughter under different circumstances, nations of grades in either manslaughter or murder. See Col 95; 1 East, P. C. 214; 1 Russell, Cr. 482; 1 Gabbett, 454; 2 W Greenl. Ev. § 130; Commonwealth r. Webster, 5 Cush. 304; fornia, 1865 (Remarks of Maj. Gen. McDowell). "Murder ter (p. 302, citing Bracton "de murdro"), was "an insidi occulta occisio, nullo sciente aut vidente." Now, secrecy in th is significant only as evidence of legal malice. 2 While it is lawful to kill an enemy "in the heat and kill such an enemy after he has laid down his arms, and fined in prison, is murder." State r. Gut, 13 Minn., 341. 3 That it is not necessary to formally muster-in drafted see §§ 1229 and 1231, ante. As to commencement of ser opinion of Atty. Gen., dated Feb. 27, 1901. 1865, ordered by the President to be honorably mustered out "of date of 15th instant," the said officers to immediately letter for their muster-out and discharge papers, held that t by virtue of that order, to be officers on the date last na the muster-out and discharge papers may not have reach after such date. Cards 1636, 1945, October and Decemb 1757. An officer of the volunteer branch of the ar 22, 1898) can continue to hold his office after the re mustered out; this on the theory that he is not an ment merely, but an officer of the volunteer bre His office can therefore be allowed to remain in allowed to hold it as long as that branch of the a Card 5075, September, 1898. 1758. G. O. 108, A. G. O., of 1863, and circul show that it was the policy of the Governme charge all volunteer officers and soldiers w many of them were in fact retained in serv organizations were mustered out. The res Department has taken action and render since the close of the war of the Rebellion was legally possible for individual officers in service after their regiments were n practice and these decisions definite r are now in force in the Record and Per ment. They were submitted by the by the Judge-Advocate General, and duly adopted as rules of practice i ment, and are as follows: 1. As a general rule an officer was not actually mustered out of considered as having been ret United States, notwithstanding other orders and circulars, of retained in service, or milit competent authority. There such as those noted in paras “ 2. When an officer or jected to military control whom it was his duty to r would have had authority. while the subordinate of be considered to have b 3. An officer or enli . No *** ema ence of hout the -ir enlistarmy he - in force of the 7. into a anges that of 1863, ----- a part of 1 he had no hed prac the army 1 regulation compe |