1975. The law regarding the use of penalty envelopes (act of March 3, 1877, c. 103, s. 5 and 6, and the act of July 5, 1884, c. 234, s. 3) restricts the use of such envelopes, for the free transmission of enclosures, to "officers of the United States Government;" except that in the latter act it is provided "that any department or officer authorized to use penalty envelopes may enclose them, with return address, to any person or persons from or through whom official information is desired, the same to cover such official information and endorsements relating thereto." Held therefore that the authorities of a college, etc., where an officer of the army is on duty under Sec. 1225, Rev. Sts., are not authorized to initiate the use of the penalty envelope for the transmission of official papers pertaining to the military department thereof but may legally transmit the same to the proper department of the Government in penalty envelopes previously furnished to them by the department for the purpose. Card 729, December, 1894. 1976. Held that recruiting officers may legally use the penalty envelope for the transmission to private persons of circulars, letters, etc., giving information with regard to enlistment in the military service, and may also when verifying, by letter, an applicant's character, enclose a penalty envelope to cover the information sought. Card 1593, July, 1895.

1977. Held that penalty envelopes with return address could legally be sent from the office of the Commissary General of Subsistence to ex-officers of the military service, for use in transmitting answers to inquiries, propounded by that office to them in connection with pending claims of enlisted men who had been under their command, also to the same parties for use in furnishing that office at its request with information relating to claims of third persons for supplies furnished or services rendered to the United States, the information sought being official, inasmuch as it was to be called for by officers of the Government in connection with claims pending before them and not from the claimants themselves. Card 6236, April, 1899.

1978. When matters pertaining to the muster-in of United States volunteers "relate exclusively to the business of the Government of the United States," adjutants general of the respective States assisting in such muster-in may legally use the penalty envelope in their correspondence to the extent stated, but any person using it must decide for himself whether in the particular case it may legally be used, having in mind his criminal liability for a misuse thereof. Cards 4610, Janu ary, 1898; 6173, April, 1899; 7351, November, 1899.

1979. If official information is called for by the War Department respecting State militia, penalty envelopes may be furnished to cover the replies under the act of July 5, 1884, but this would not authorize

their use otherwise for the business of the militia with the general government. Card 6419, May, 1899.

1980. A penalty envelope or postal card with return address may legally be sent by a disbursing officer to a public creditor (a private person) to be used by the latter in acknowledging receipt of a check sent. Card 6236, April, 1899.

1981. Penalty envelopes cannot legally be used by retired enlisted men in sending to military posts for supplies for their use. Card 3415, August, 1897.

PERJURY.

1982. It is a well settled rule of the common law that to sustain the charge of perjury, the evidence of two witnesses or of one witness with strong corroborating circumstances is necessary to prove the falsity of what was testified. XII, 631, September, 1865.

1983. Under this charge, testimony which consists of answers to questions going to the credit of a particular witness, or of other witnesses whom he corroborated, is "material to the issue." 36, 359, November, 1889; 54, 316, July, 1892.

1984. Where the prosecution introduced but one witness to prove the falsity of the testimony under this charge, and that witness was contradicted as to a material point and the accused was convicted, advised, pending the execution of the sentence, that the unexecuted portion thereof be remitted on account of the failure of proof. LIII, 644, May, 1888.

1985. False swearing by an officer or enlisted man before a court. martial, knowing the same to be false, whether or not as to matter material to the issue, is "conduct to the prejudice of good order and military discipline", and is cognizable and punishable as such under the general (62d) article.' 36, 359, November, 1889.

1986. "False swearing," as the term is used in the order prescribing maximum punishments, means, (1) taking a false oath in a military judicial proceeding as to a matter not material to the issue; (2) taking a false oath otherwise than in a judicial proceeding, before a person legally authorized to administer the oath and under circumstances affecting the interests of the military service. 46, 211, March, 1891. 1987. A recruit's declaration as to his age is no part of the oath prescribed by the 2d Article of War. There is no law of the United States which requires that such statement shall be under oath. Held, therefore, that when the statement is false the recruit is not indictable for perjury under Sec. 5392, Rev. Sts. 30, 176, February, 1889.

1And in the case of an officer it is also chargeable as a violation of the 61st Article.

PLEA.

1988. It is a general rule of criminal law that where the accused pleads guilty, no testimony on the merits is to be introduced. But, on military trials, the court, even against the objection of the accused, may, in its discretion, call upon the judge-advocate to offer evidence, or approve of his doing so, in a case where such evidence is deemed to be essential to the due administration of military justice. An accused cannot be allowed, by pleading guilty, to shut out testimony where the interests of the service require its introduction. XXIX, 124, July, 1869. But in all cases where evidence is introduced by the prosecution after a plea of guilty, the accused should of course be afforded an opportunity to offer rebutting evidence, or evidence as to character, should he desire to do so. XIII, 423, February, 1865.

1989. While it cannot properly be ordered by a commander that courts martial convened by him shall not receive pleas of guilty, or shall take evidence on the merits notwithstanding pleas of guilty are interposed by the accused, it is yet proper, and in general desirable, particularly in cases of enlisted men, and especially where the specifications do not fully set forth the facts of the case, that the prosecution should be instructed or advised to introduce, with the consent of the court, evidence of the circumstances of the offence, where the plea is guilty equally as where it is not guilty. This for the reason that the court may be better enabled correctly to appreciate the nature of the offence committed and thus to estimate the measure of punishment proper to be awarded; and further that the reviewing authority may be better enabled to comprehend the entire case, and to determine whether the sentence shall be approved or disapproved (in whole or in part), or shall be mitigated or (in whole or in part) remitted. Where indeed the sentence is not discretionary with the court, the former reason does not apply, though in such case the evidence may be desirable as the basis for a recommendation by the members. But where the sentence is mandatory, the latter reason applies with the greater force, since the mandatory punishments under the Articles of War are

The principle that in cases in which the plea is guilty the court should take testimony, where necessary to the comprehending of the facts and the doing of justice, though apparently in a measure lost sight of at a later period, was clearly enunciated in early general orders of the War Department. Thus, in G. O. 23 of 1830, Maj. Gen. Macomb (commanding the Army) expresses himself as follows:-"In every case in which a prisoner pleads guilty, it is the duty of the court martial, notwithstanding, to receive and to report in its proceedings such evidence as may afford a full knowledge of the circumstances; it being essential that the facts and particulars should be known to those whose duty it is to report on the case, or who have discretion in carrying the sentence into effect." And see G. O. 21, of 1833, to a similar effect.

See now Court-Martial Manual (1901), pp. 31-33.

in general of the severest quality, and the reviewing officer in acting upon the same is called upon to exercise an especially grave discretion. In capital cases particularly, it is most important that all the facts of the case-all circumstances of extenuation as well as of aggravationshould be exhibited in evidence. III, 647, September, 1863; VI, 370, September, 1864. In practice, the absence of evidence to illustrate the offence has been found peculiarly embarrassing in cases of deserters. In a majority of these cases in which the plea is "guilty," the record is found to contain no testimony whatever; and a full and intelligent comprehension of the nature of the offence-whether desired upon the original review of the proceedings or upon a subsequent application for remission of sentence-is thus, in many instances, not attainable.1 XXVII, 180, September, 1868.

1990. It not unfrequently happens upon trials of enlisted men that the accused, in pleading guilty, will proceed to make a statement (oral or written) to the court, which is in fact inconsistent with the plea. Thus, in a case where the accused, being evidently ignorant of the forms of law, pleaded guilty to an artificially worded charge and specification, and immediately thereupon made an oral statement to the court of the particulars of his conduct, setting forth facts quite incongruous with his plea, and no evidence whatever was introduced in the case;-held that the statement, rather than the plea, should be regarded as the intelligent act of the accused, and that, upon considering both together, the accused should not be deemed to have confessed his guilt of the specific charge. VIII, 274, April, 1864; XVII, 48, June, 1865; XXX, 33, July, 1869. In such a case the court will properly counsel the accused to plead not guilty, or direct such plea to be entered, and proceed to a trial and investigation of the merits (VI, 357, 370, September, 1864); the judge-advocate introducing his proof precisely as under an ordinary plea of not guilty. 61,394, September, 1893. And where, with a plea of guilty, there was offered by the accused a written statement setting forth material circumstances of extenuation, and the court without taking any testimony whatever, or apparently regarding the statement, proceeded to conviction and sentence; advised the case being one in which the sentence had been partly executed-that this action constituted a reasonable ground for a remission of a portion of the punishment. XX, 120, 127, 177, Norember, 1865; XV, 142, April, 1865; XXIX, 421, November, 1869; XXXII, 652, May, 1872; XXXIII, 42, June, 1872.

1991. Wherever, in connection with the plea of guilty, a statement

1See views of the Judge-Advocate General, relating to the subject of this paragraph, published in G. C. M. O. 69, Hdqrs. of Army, 1877.

or confession, whether oral or written, is interposed by the accused, both plea and statement should be considered together by the court; and if it is to be gathered from the statement that evidence exists in regard to the alleged offence which will constitute a defence to the charge, or relieve the accused from a measure of culpability, the court will properly call upon or permit the judge advocate to obtain and introduce such evidence, if practicable. XIV, 585, 596, June, 1865; XXVI, 562, May, 1868; XXVIII, 123, September, 1868; XXIX, 11, 348, June and October, 1869; 658, February, 1870.

1992. It has not unfrequently happened that enlisted men, charged with desertion, have, in connection with a plea of guilty, made a statement disclaiming having had, in absenting themselves, any intention of abandoning the service, and stating facts which, if true, constitute absence-without-leave only. In such a case the accused cannot in general fairly be convicted of desertion in the absence of an investigation, and the court will properly, therefore, induce him to change his plea to not guilty, or direct this plea to be entered and take such evidence as may be attainable, to show what offence was actually committed.' XXVI, 562, May, 1868.

1993. Statements inconsistent with the plea have not rarely been made in cases like larceny where several distinct elements are required to constitute the crime in law. For example, a soldier will plead guilty to a charge of larceny, and thereupon make a statement disclaiming the peculiar intent (animus furandi) necessary to the offence, thus really admitting only an unauthorized taking. In such cases the court will properly instruct the accused that he should change his plea to not guilty, and, if he declines to do so, will properly call upon the judge advocate to introduce evidence showing the actual offence committed. XXVIII, 677, June, 1869; XXIX, 658, February, 1870.

1994. A court martial is authorized, in any case, in its discretion, to permit an accused to withdraw a plea of not guilty, and substitute one of guilty, and vice versa, or to withdraw either of these general pleas and substitute a special plea. And wherever the accused applies to be

The views of the Judge-Advocate General, as presented in §§ 1990-1992, have been adopted in the general orders of the War Department and in numerous orders of the various military department, &c., commands. In G. C. M. O. 2, War Dept. 1872, the Secretary of War observes, in regard to two cases of soldiers, as follows: "The written statements submitted by the accused are contradictory of their pleas of 'guilty.' The court should have regarded these statements as neutralizing the effect of their pleas, and should have had the accused instructed as to their legal rights, and advised to change their pleas with a view to the hearing of testimony. It not unfrequently happens that soldiers do not understand the legal difference between absence-without-leave and desertion, or are wholly unable to discriminate as to the grade of their offences, as determined by their motives. They thus, sometimes, ignorantly plead guilty and are sentenced for crimes of which they may be actually innocent. The proceedings, findings, and sentences are disapproved.' And see G. C. M. O. 31, War Dept., 1876.