allowed to change or modify his plea, the court should in general consent provided the application is made in good faith and not for the purpose of delay, and to grant it will not result in unreasonably protracting the investigation. XXX, 672, October, 1870. 1995. Objections to the charges or specifications in matters of form should be taken advantage of by special pleas in the nature of pleas in abatement, or, better, by motion to strike out. Such are objections to the specifications as inartificial, indefinite, or redundant; or as misnaming the accused (or other persons required to be specified), or misdescribing him as to his rank or office; or as containing insufficient allegations of time or place, &c. In such cases the objection should be raised by a special plea in abatement, or by motion, in order that errors capable of amendment may be amended on the spot by the judge advocate, and the plea of not guilty (or guilty) being then made-the trial may proceed in the usual manner. Objections of this class, not thus taken, will properly be considered as raived by the plea of guilty or not guilty, and their existence will not then affect the validity of the proceedings or sentence. V, 577, December, 1864; VII, 234, February, 1864; IX, 518, August, 1864; XV, 117, March, 1865; XXIV, 140, January, 1867; XXV, 100, September, 1867; XXVIII, 372, February, 1869; XXX, 288, April, 1870; XXXIV, 32, November, 1872; XXXV, 450, June, 1874; XXXVIII, 654, June, 1877; LI, 144, February, 1887; LVI, 243, May, 1888. Where without preliminary objection the accused pleads guilty or not guilty to a specification, in which he is incorrectly named or described, such plea will be regarded as an admission by the accused of his identity with the person thus designated, and he cannot thereafter object to the pleadings on account of misnomer or misdescription.' V, 577, December, 1864; XV, 117, March, 1865; XXV, 100, September, 1867; LI, 144, February, 1887. 1996. Facts and circumstances which are properly matters of evidence are not legitimate subjects of pleas; as, for example, circumstances going to extenuate the offence. Thus held that good conduct of the accused in battle subsequent to the commission of the offence charged could not properly be presented in the form of a plea. VI, 79, 1Objections to the charges and specifications on account of matter of substance,—as that they do not contain the necessary allegations, or otherwise do not set forth facts constituting military offences,—should properly be made at the outset of the proceedings by a special plea in the nature of a demurrer, or they will in general be regarded as waived. So, objections going to the legal constitution or composition of the court, or to its jurisdiction, should also properly he specially presented when the accused is first called upon to plead: valid objections of this radical character, however, are not wired if the accused, instead of submitting a special plea, pleads over to the merits, since consent cannot confer jurisdiction on a court martial where none exists in law. See § 1031, ante, and note. April, 1864. So held that the fact that the charge was preferred through personal hostility to the accused was not matter for plea, but, if desired to be taken advantage of, should be offered in evidence. XXXIV, 554, October, 1873. 1997. A plea of a restoration to duty by competent authority without trial, under the Army Regulations, is in the nature of a plea of a constructive pardon, and a good special plea in bar of trial. But going to trial on the general issue waives it. XLIX, 94, May, 1885. 1998. An individual pardon must be pleaded; but a court is bound to take judicial notice, as affecting its jurisdiction, of a general pardon or amnesty. Thus where a court martial failed to do so in the trial of a deserter who had returned to service under the terms of the amnesty proclamation of March 11, 1865, this fact appearing from the specification to the charge of desertion upon which he was tried, it was held that the court was without jurisdiction of the offence and that the trial had was illegal. Card 1274, April, 1895. 1999. Where an accused declined to plead on the ground that he was so much under the influence of liquor at the time of the acts charged that he could not remember what occurred, held that the court properly directed a plea of "not guilty" to be entered. XLIX, 545, December, 1885. 2000. The fact that a sergeant has been reduced to the ranks, confined in arrest, and required to perform work under the custody of a sentinel, though such a disposition may be in excess of authority, cannot constitute a legal plea in bar to a trial upon the charge for which he was arrested. Such treatment is apposite to the case only as entering into the consideration of the question of the quantum of punishment upon conviction. XLVII, 242, July, 1883. POST COMMANDER. 2001. A post commander cannot properly allow his post to become an asylum for fugitives from civil justice. XXXVI, 450, May, 1875. 2002. Held that the commander of the prison post at Alcatraz Island was authorized to make and enforce all necessary and proper regulations for the safe keeping and government of the military prisoners there confined; that he might, by the use of force, if needful, but using no more force than was necessary, prevent civilians from landing on the island in violation of the regulations, and put such persons off the island as had landed there contrary to the same; that, in an extreme case, as where a civilian engaged in aiding a prisoner to 1 1 Compare Heard's Criminal Pleading, 296; U. S. v. Wilson, 7 Peters, 150. escape, and no other means of prevention would avail, he might properly order the party to be fired upon by the guard. XXXII, 525, April, 1872. 2003. Where a general court martial has been convened at a military post by the department commander, the commander of the post is not empowered, in the absence of authority from such superior, to refer cases to the court for trial. Such action has sometimes been taken and acquiesced in, but (unless specially authorized) it is irregular and a transcending of his province by the post commander. XLI, 306, July, 1878. 2004. A Post commander can, in his discretion, exclude all persons other than those belonging to his post from post and reservation grounds, but should he admit everybody except one individual against whom no charge of wrong doing existed, such action would be considered an abuse of discretion on the part of the post commander. Card 2682, October, 1896. POST EXCHANGE OR CANTEEN. 2005. The post exchange (or canteen) is (or was) in no sense a post trader but an establishment created solely by military orders. Card 1490, July, 1895. 2006. The relation which exists between the post exchange and the officer in charge, as to the custody of its funds, is not simply that of a gratuitous bailment. In a case of such a bailment, the law only requires slight diligence and makes responsible only for gross neglect. But the liability here is more than this; the custody of the funds is an official duty, devolving a material trust, and in the discharge of that duty a greater degree of care is required. So, where the officer in charge of a post exchange, in conveying the funds of the exchange from the post to a bank in the town for deposit, placed them in a package inside of the breast of his blouse which was without pockets, and the package slipped down and was lost-held that the officer had not used due care and should be charged with the amount lost. 54, 41, June, 1892. 2007. Where the officer in charge of a post exchange at a post adjoining a city, having in his hands for deposit in bank an amount of about one thousand dollars of post exchange funds, instead of personally attending to the deposit, sent in to the bank, with the funds, the post exchange steward, who appropriated to his own use a portion of the amount and did not return to the post till arrested by the civil authorities-held that the officer, not being a mere bailee without compensation but an official charged with the custody of the funds in a public capacity, had not taken the degree of care properly required of him, and was responsible for the amount lost. 64, 138, March, 1894. 2008. A post exchange was entered and robbed of a sum of money, consisting in part of that day's receipts and in part of a small and reasonable sum left by the officer in charge with the exchange steward, to make change. Under par. 337, A. R. (par. 4, G. O. 46, A. G. O., 1895), the officer in charge is not responsible for the day's receipts till turned over to him by the steward on the following morning. Held, in the absence of any evidence of negligence or want of precaution on his part, that the officer was not legally liable for the amount of the loss. 58, 437, March, 1893. 2009. The post exchange is a part of the administrative machinery of the army established by army regulations which have the force of law. A fraud committed by the steward of a post exchange in its management is therefore clearly a military offence. Card 5255, November, 1898. 2010. A post exchange is not a corporation but merely property appertaining to the organizations constituting the garrison. It is a co-operative store belonging to the persons or organizations which have paid for their shares of it. Articles donated to the exchange are donated to the owners, and such articles should be considered as part of the assets of the exchange, to be turned over, or accounted for, by its members to their successors. 65, 127, May, 1894. 2011. Held (January, 1892), that the appropriation in the existing army appropriation act, "for fuel and lights for enlisted men," included the fuel and lights required at a canteen, since thus used. they are for "enlisted men" almost if not quite as much as when used in their places of messing and sleeping. But held otherwise as to the sale, to or for a canteen, of articles for fuel or light, for cash. The act authorizes such sale to "officers" only. And though the official in charge of a canteen is a commissioned officer, a sale to him of such material would not be for his use but for that of the canteen and therefore unauthorized. 51, 239. January, 1892. 2012. When the post exchange (then called canteen) was of a private character it was held that stoppages of pay could not be made to reimburse losses of canteen funds; and at that time the Treasury Department also held that canteens were taxable by the Government. Subsequently (in 1897) the Treasury Department held that post exchanges as then organized under the orders of the War Department were government instrumentalities or agencies and were therefore not taxable under the internal revenue laws. The funds of the post exchange are moneys used in carrying on this public agency, and the Government has a right to protect its instrumentalities,-the establishments through which it carries on public business. Held therefore that stoppages against the pay of officers and enlisted men may legally be made to reimburse the post exchange fund on account of losses for which such officers and enlisted men are responsible. Cards 3171, June, 1897; 7186, October, 1899. 2013. The post exchange (formerly canteen) was not established by Congress but is maintained under special regulations prepared by the War Department. It is recognized as a government instrumentality, and has been recognized by Congress, by reference to it, in acts of June 13, 1890 (26 Stats., 154), and of July 16, 1892 (27 Stats., 178). Card 5394, November, 1898. 2014. A post exchange is not legally liable for local or municipal taxes or licenses, on the sale of commodities for the exclusive use of persons in the military service; such exchange being as was recognized by the Court of Claims (in Dugan v. United States) an instrumentality of the Government of the United States. Card 7324, November, 1899. 1 See G. O. 46, A. G. O., 1895, as amended by Post Exchange Regulations of February 2, 1901, pursuant to sec. 38 of the army act of February 2, 1901. In the case of Thomas B. Dugan r. The U. S. decided June 5, 1899 (34 Ct. Cls., 458), the Court said: “Under Post Exchange Regulations adopted by the War Department, and published by General Orders, No. 46, Headquarters of the Army, July 25, 1895, post exchanges were established and the commanders at every post thereby required to institute the same; to set apart, rent, or construct as therein provided a suitable building or rooms therefor and to detail an officer to be designated as 'officer in charge' to manage the business and affairs of such exchanges under the superintendence of a council consisting of three officers. * * * "Such exchanges were first organized under General Order No. 10, AdjutantGeneral's Office, February 1, 1889, and as thus organized superseded the "canteens' which were organizations in the nature of social clubs, voluntarily formed by the officers of a regiment or other command with their own money and conducted independently of their official duties, as we are advised. "These social clubs, known as 'canteens,' were organized after the office of sutler in the army had been abolished by the act of July 28, 1866 (14 Stat. L., 366). They were held liable to internal revenue tax the same as social clubs in cities selling manufactured tobacco, cigars and liquors to their members. "By the act of January 28, 1893 (27 Stat. L., 426; 2 Supp. Rev. Stats., 76), post traderships in connection with the military service were also abolished, and following this came the establishment of 'post exchanges' by the regulations therefor, published in 1895, as aforesaid. * * * * * * "On the application of the claimant (Post Exchange Officer at Jefferson Barracks, Mo.), the Commissioner of Internal Revenue, under Revised Statutes, section 3426, as amended by section 17 of the act of March 1, 1879 (20 Stat. L. p. 349; 1 Supp. Rev. Stat. p. 241), made allowances or awards in his favor for the repayment to him of the special tax so paid and the Commissioner certified the same for payment. * * * "The decision of the Commissioner presumably based on 'satisfactory evidence of the facts' was that the post exchanges so established were no longer the mere social clubs that the old canteens were,' but that they were 'brought under the complete control of the Secretary of War by the regulations as governmental agencies' and for that reason the special tax was not required to be paid by post exchanges as 'dealers in oleomargarine, or as liquor dealers, or malt liquor dealers.' * * * "True such exchanges have not been authorized by direct legislation but the President has the undoubted power to establish rules and regulations for the government of the army, and whatever rules and orders are promulgated through the Secretary of War 'must be received as the acts of the Executive and as such be binding upon |