1516. If an insane soldier be brought to trial by court martial and he is shown by the record to have been insane pending the trial, the proceedings and sentence, if any, should be declared null and inoperative in orders. If the question of insanity in his case is not raised till after the proceedings have been acted upon and the sentence has been approved, and it then appears that he was actually insane, the sentence should be remitted. LV, 563, April, 1888. 1517. The Government has no power to compel an officer of the army to furnish his wife, for her support, with a certain proportion, or any part, of his pay. Where such an officer is confined in an insane asylum, his wife may, by having a curator appointed, be enabled to avail herself of his pay for the support of herself and her family. 59, 348, May, 1893. The wife of an officer under treatment at the Government Insane Hospital, who has been duly appointed, and has given bond as, the guardian of her husband, under the laws of the State of her residence, may, by the authority of Sec. 952, Rev. Sts., D. C., collect and receive his pay or other moneys that may be due him, in the same manner as if her "authority had been derived from the tribunals of the District." 57, 479, February, 1893. INTERPRETER. 1518. That a member of the court acted as interpreter on a trial, held an irregularity, but one which did not affect the legal validity of the proceedings. IX, 15, May, 1864. 1519. Where the charges against a private soldier were preferred by the captain of his company, who also acted not only as a prosecuting witness but as interpreter on the trial, held a grave irregularity which might well induce a disapproval of the proceedings and sentence, unless it quite clearly appeared that no injustice had been done the accused. VII, 562, April, 1864. J. JUDGE-ADVOCATE. 1520. In view of the comprehensive terms of the 74th of the new code of Articles of War, held that officers empowered by Arts. 81 and 82 to order regimental or garrison courts martial were as fully authorized to detail judge-advocates for the courts convened by them as were 'That an important witness for the prosecution on a trial should not properly be permitted to interpret the testimony of another such witness, is remarked in G. C. M. O. 24, Dept. of Texas, 1875. 1 the officers who were empowered by Arts. 72 and 73 to order general courts. XLIII, 100, December, 1879; 221, February, 1880; 54, 348. July, 1892. 1521. Any commissioned officer may legally be appointed judgeadvocate of a court martial. Thus a surgeon, assistant surgeon, or a chaplain, is legally eligible to be so detailed. IX, 377, July, 1864. 1522. A separate judge-advocate should be appointed for each general court martial convened by a department, or other competent commander. The same officer may indeed be selected to perform the duties of judge-advocate as often as may be deemed desirable by the commander, but he should be detailed anew for every court martial on which he acts. To appoint in a general order a particular officer to act as judge-advocate for all the courts to be held in the same command would be quite irregular and without the sanction of precedent. II, 54, March, 1863; XVI, 429, August, 1865. 1523. It is competent for the commander who has convened a court martial to relieve the judge-advocate originally detailed for it and substitute another in his place; and the second may in the same manner · be relieved by a third, &c. The relieving, however, of a judge-advocate pending a trial must in general embarrass the prosecution of a case, and should not be resorted to if it can well be avoided. V, 550, December, 1863; VII, 534, April, 1864. 1524. Where there have been two or more judge advocates successively detailed in the course of a trial, the one who is acting at the close is the one (and the only one) required to authenticate the proceedings by his signature. II, 148, April, 1863. 1525. While a judge-advocate may be relieved pending a trial and a new one appointed, it would not be proper to make such a change after the conclusion of a trial, simply for the purpose of having the record authenticated. If authentication by the judge-advocate who officiated at the close of the trial cannot be obtained the sentence should be disapproved. Card 5230, October, 1898. 'This view has been adopted and acted upon in G. O. 15, Hdqrs. of Army, Feb. 27, 1880, as follows: "Under the provisions of the 74th Article of War, officers who may appoint a court martial shall be competent to appoint a judge-advocate for the same. Accordingly, a judge-advocate is hereafter to be appointed for a regimental or a garrison court martial in like manner as for a general court. "General Orders No. 49, of 1871, prescribing a form of oath for the recorders of regimental and garrison courts, is rescinded." In an official communication, of May 13th, 1880, addressed to the Comdg. Gen. of the Mil. Div. of the Atlantic, this order is declared by the Secretary of War to be intended to be mandatory, not directory merely. 2 But A. R. 954, as amended by G. O. 134, A. G. O., 1900 (1055 of 1901), now provides, inter alia, that Whenever, by reason of the death or disability of the judgeadvocate occurring after the court has decided on the sentence, the record can not be authenticated by his signature, it must show that it has been formally approved by the court and must be authenticated by the signature of the president.” 1526. A direction in an order convening a general court martial that if the judge-advocate be prevented from attending the junior member of the court will act in his stead, held irregular and improper; the function of a judge advocate as prosecuting officer (see Art. 90) not being properly compatible with that of a member of a court martial. And the member having acted as judge-advocate and member in the case, advised that the proceedings be disapproved by the reviewing authority. II, 60, March, 1863; XXI, 300, March, 1866. A court martial has of course no authority to direct or empower its junior member or any other officer to act as its judge-advocate. XXVIII, 198, October, 1868. 1527. An officer serving as judge-advocate on the staff of a department or army commander has as such no authority to act as judgeadvocate of a court martial convened by such commander. If it is desired that he should act as judge-advocate of such a court, he should be specially detailed for the purpose. V, 140, October, 1863. 1528. While a civilian may legally be appointed, or rather employed, as judge-advocate of a court martial, such an employment has, for the past fifty years, been of the rarest occurrence in the military service.1 Civil judge-advocates have been much more frequently employed for naval than for military courts martial. XX, 507, March, 1866. · 1529. While a judge-advocate is not subject to challenge (XXXV, 618, October, 1874), and it cannot affect the legal validity of the proceedings of a court martial that the judge-advocate was personally objectionable or hostile to the accused (XXVII, 127, August, 1868; XLIII, 106, December, 1879), it is yet desirable to detail as judge advo- ' cate, if practicable, an officer who has no considerable prejudice against the party to be tried, or any decided personal interest in his case. Thus the selection as judge-advocate of an officer who was not only a material witness for the prosecution but would be promoted in case the accused, an officer of his regiment of a higher grade, were dismissed by the court, remarked upon as an unfortunate one. XXI, 177, January, 1866; XXXI, 361, May, 1871. 3 1530. An officer cannot in general fitly or becomingly act as judge The last occasions of such employment are believed to have been those of the trial of the persons charged with complicity in the assassination of President Lincoln, and the trial of Major Haddock, Prov. Mar. Dept. (see G. C. M. O. 356 and 565, War Dept., 1865), upon which Hon. J. A. Bingham and Hon. Roscoe Conkling were respectively employed as judge advocates. For an early case in which a civilian, who was afterwards a President of the United States, was employed as judge advocate, see note to § 1663, post. 2 In view of the provisions of sec. 17 of the act of June 22, 1870 (Sec. 189, Rev. Sts., transferring to the Department of Justice the authority to employ counsel for the executive departments, neither the Secretary of War nor the Secretary of the Navy is now authorized to retain a civilian lawyer to act as judge-advocate of a court martial. 13 Opins. At. Gen. 514; 14 id. 13. 3See G. C. M. Ɔ. 5, War Dept., 1871; do. 41, id., 1875. advocate in a case in which he is personally interested as accuser or prosecutor. 39, 35, February, 1890. Where the judge-advocate had prepared the charges and was the accuser in the case, and moreover entertained a strong personal prejudice or hostility against the accused. held that he was ill-chosen to act as judge advocate especially in the capacities of prosecuting official and adviser to the court. XLIX, 613, December, 1885. One who, without personal prejudice against the accused or interest in his conviction, has signed the charges as company commander, may not improperly act as judge-advocate in the case. 63, 240, January, 1894. 1531. A judge-advocate is not authorized to entertain charges in the first instance: he can properly act upon charges, i. e. make service of the same, prepare the case for trial, &c., only when the charges are transmitted to him for the purpose by the officer who has convened the court or detailed him as judge-advocate. XLII, 202, March, 1879. 1532. The judge-advocate is not unfrequently directed to prepare or re-frame charges; but where charges, already formally preferred, are transmitted to him for prosecution, he should not assume to modify them in material particulars in the absence of authority from the convening officer. While he may ordinarily correct obvious mistakes of form or patent or slight errors in names, dates, amounts, &c., he cannot without such authority make substantial amendments in the allegations, or-least of all-reject or withdraw a charge or specification, or enter a nolle prosequi as to the same, or substitute a new and distinct charge for one transmitted to him for trial by the proper superior.1 II, 60, March, 1863; XXI, 56, November, 1865; 20, 378, November, 1887. 1533. The duty of the judge-advocate toward the accused should not be regarded as confined to the limited province of "counsel for the prisoner" as the same is defined in the 90th Article of War. Where the accused is ignorant and inexperienced and without counsel especially where he is an enlisted man-the judge-advocate should take care that he does not suffer upon the trial from any ignorance or misconception of his legal rights, and has full opportunity to interpose such plea and make such defence as may best bring out the facts, 1See G. O. 64, Dept. of the Cumberland, 1867; do. 98, id., 1868; do. 85, Dept. of the South, 1874; G. C. M. O. 36, 42, Dept. of the Platte, 1877; do. 13, id., 1878; do. 48, Mil. Div. of Pacific & Dept. of Cal., 1880. This paragraph sets forth the established practice. See Manual for Courts Martial (1901), p. 23, par. 2. A competent judge-advocate will properly be left by the court to introduce the testimony in the form and order deemed by him to be the most advantageous, and generally to bring on cases for trial and conduct their prosecution according to his own judgment. Compare G. C. M. O. 97, Dept. of Dakota, 1878; do. 38, Dept. of Texas, 1878; and-as to the civil practice-United States v. Burr, 1 Burr's Trial, 85, 469; Lynch . Benton, 3 Rob., 105; Davany r. Koon, 45 Miss., 71. the merits, or the extenuating circumstances of his case. V, 577, December, 1863; LV, 182, December, 1887. The judge-advocate should advise the accused, especially when igħorant and unassisted by counsel, of his rights in defence-particularly of his right, if it exists in the case, to plead the statute of limitation (21, 156, December, 1887), and of his right to testify in his own behalf. A failure to do so, however, will not affect the legal validity of the proceedings; though, if it appear that the accused was actually ignorant of these rights, the omission may be ground for a mitigation of sentence. LV, 182, supra. 1534. For the judge-advocate to counsel the accused, when a soldier or inferior in rank, to plead guilty, must in general be unbefitting and inadvisable. But where such plea is voluntarily and intelligently nade, the judge advocate should properly advise the accused of his right to offer evidence in explanation or extenuation of his offence, and, if any such evidence exists, should assist him in securing it. And where no such evidence is attainable in the case, the judge advocate should still see that the accused has an opportunity to present a "statement," written or verbal, to the court, if he has any desire to do so. V, 577, December, 1863. 1535. A judge-advocate of a court martial has no authority to place in arrest an officer or soldier about to be tried by the court, or to compel the attendance of the accused before the court by requiring a noncommissioned officer to bring him or otherwise: these are duties which devolve upon the convening authority or upon the post commander or other proper officer in whose custody or command the accused is at the time. XXVIII, 531, April, 1869. 1536. It is strictly the proper practice for a judge-advocate not to give his opinion upon a point of law arising upon a military trial, unless the same may be required by the court. This practice, however, is often departed from, and the opinions of judge-advocates, suitably tendered, are in general received and entertained by the court. without objection, whether or not formally called for. But where the court does object to the giving of an opinion by the judge-advocate, he is not authorized to attempt to give it, and of course not authorized to enter it upon the record. Whether the fact that the opinion was offered and objected to by the court-shall be entered upon the record, is a matter for the court alone to decide. It is, however, certainly the better practice that all the proceedings, even those that are irregular, which transpire in connection with the trial, should be set out 1See G. O. 75, A. G. O. 1887. See Manual for Courts Martial (1901) p. 23, par. 3; also Macomb (e l. of 1809), 170, 171. PP. 71359-09-28 |