SIXTY-SECOND ARTICLE.

All crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing Articles of War, are to be taken cognizance of by a general or a regimental, garrison, or field-officers' court-martial, according to the nature and degree of the offence, and punished at the discretion of such court.

148. The word "crimes" in this Article, distinguished as it is from "neglects" and "disorders," means military offences of a more serious character than these, including such as are also civil crimes-as homicide, robbery, arson, larceny, &c. "Capital" crimes (i. e. crimes capitally punishable), including murder, or any grade of murder made capital by statute, can not be taken cognizance of by courts martial under this Article. I, 473, December, 1862; VII, 429, 465, March and April, 1864; XI, 176, November, 1864; XXIX, 257, September, 1869; XXXII, 478, 522, April, 1872; XXXIV, 350, 447, July and September, 1873; XXXV, 385, September, 1874; XXXVI, 364, April, 1875; XLI, 50, November, 1877. A crime which is in fact murder, and capital by statute of the United States or of the State in which committed, cannot be brought within the jurisdiction of a courtmartial under this Article, by charging it as "manslaughter, to the prejudice," &c., or simply as "conduct to the prejudice," &c.1 If the specification, or the proof, shows that the crime was murder and a capital offence, the court should refuse to take jurisdiction, or to find or sentence. If it assume to do so, the proceedings should be disapproved as unauthorized and void. XXXIII, 155, July, 1872; XXXIV, 250, May, 1873; XLII, 451, December, 1879.

149. The term "to the prejudice of good order and military discipline," qualifies, according to the accepted interpretation, the word "crimes" as well as the words "disorders and neglects." Thus, the crime of larceny (sometimes charged as "theft" or "stealing") is held chargeable under this Article, when it clearly affects the order and discipline of the military service. Stealing, for example, from a fellow soldier or from an officer (or stealing of public money or other public property, where the offence is not more properly a violation of Art. 60) is generally so chargeable. XXIV, 441, April, 1867; XXVI, 23, 439, 487, September, 1867, to March, 1868; XXXVI, 214, January, 1875; XXXIX, 47, December, 1876. And so of any other crime (not capital), the commission of which has prejudiced military discipline. As for example, manslaughter (or homicide not amounting to murder

1 See this opinion, as given in an important case, adopted by the Secretary of War in his action on the same published in G. C. M. O. 3, War Dept., 1871; also the similar rulings in G. C. M. O. 28, Dept. of Texas, 1875; G. O. 14, Dept. of Dakota, 1868; do. 104, Army of the Potomac, 1862. As to the jurisdiction of courts martial in cases of murder, &c., in time of war, see FIFTY-EIGHTH ARTICLE.

see § 148, ante) of a soldier (XXV, 592, June, 1868; XXXI, 87, December, 1870; 278, April, 1871; XXXIII, 155, July, 1872; XXXVI, 667, September, 1875; XXXVII, 380, March, 1876; XLI, 188, April, 1878); assault with intent to kill a fellow soldier (XXVII, 587, 654, March and May, 1869); forgery of the name of a disbursing or other military officer to a government check or draft (XXIX, 369, October, 1869); or forgery of an officer's name to a check on a bank (XXXII, 623, May, 1872) whether or not anything was in fact lost by the Government or the bank or officer; forgery in signing the name of a fellow soldier to a certificate of indebtedness to a sutler (IX, 328, July, 1864); or to an order on a paymaster (XLII, 562, March, 1880); embezzlement or misappropriation of the property of an officer or soldier. XXXIX, 201, October, 1877.

150. Held that for an officer to print and publish to the army a criticism upon an official report, made by another officer in the course of his duty to a common superior, charging that such report was erroneous and made with an improper and interested motive, was gravely unmilitary conduct to the prejudice of good order and military discipline. An officer who deems himself wronged by an official act of another officer should prefer charges against the latter or appeal for redress to the proper superior authority. He is not permitted to resort to any form of publication of his strictures or grievances. XXXIX, 431, February, 1878. So held that for an officer to publish or allow to be published in a newspaper of general circulation, charges and insinuations against a brother officer by which his character for courage and honesty is aspersed and he is held up to odium and ridicule before the army and the community-was a highly unmilitary proceeding and one calling for a serious punishment upon a conviction under this Article, and this whether or not the charges as published were true. XLII, 284, May, 1879.

151. A crime, disorder, or neglect, cognizable under this Article, may be charged either by its name simply, as "larceny," "drunkenness," "neglect of duty," &c.; or by its name with the addition of the words, "to the prejudice of good order and military discipline;" or simply as "conduct to the prejudice of good order and military discipline;" or as "violation of the 62d Article of War." It is immaterial in which form the charge is expressed, provided the specification sets forth facts constituting an act prejudicial to good order and military discipline. VII, 485, March, 1864; IX, 328, March, 1864; XI, 228, December, 1864; XXVIII, 486, April, 1869. Whenever the charge and specification taken together make out a statement of an act clearly thus prejudicial, &c., the pleading will be regarded as substan

71359-09-5

tially sufficient under this general Article. XVI, 316, 551, June and September, 1865.

152. A charge of conduct to the prejudice," &c., with a specification setting forth merely trials and convictions of the accused for previous offences, is not a pleading of an offence under this Article, or of any military offence. XXVII, 331, November, 1868. So of a charge of "habitual drunkenness to the prejudice," &c., with a specification setting forth instances in which the accused has been sentenced for acts of drunkenness. XXXIII, 175, July, 1872. Such charges indeed are in contravention of the principle that a party shall not be twice tried for the same offence. So, a specification under the charge of "conduct to the prejudice," &c., which sets forth not a distinct offence but simply the result of an aggregation of similar offences, is insufficient in law. XXXVI, 432, May, 1875. Where the specifications to such a charge, in a case of an officer, set forth that the accused was "frequently" drunk, "frequently" absented himself without authority from his command, &c., held that these specifications were properly struck out by the court on the motion of the accused. In such a case the only correct pleading is a general charge under this Article, with specifications setting forth-each separately-some particular and specific instance of offence. XXXVIII, 211, August, 1876. 153. Held that a specification alleging homicide, but not adding “with malice aforethought," or in terms to that effect, was a pleading of månslaughter only and thus within this Article. XLVII, 385, July, 1884. 154. The withdrawing by a disbursing officer of the Army from an authorized depository of public funds for a purpose not prescribed or authorized by law-as for personal use, or to pay claims not due from the United States or payable by such officer-being a form of embezzlement defined by section 5488, Rev. Sts., is properly charged as embezzlement under this article. XXV, 588, May, 1868; XXVII, 414, December, 1868; XXXIII, 291, 495, September and November, 1872; XXXVIII, 96, May, 1876. Though the offence may in terms be laid as a violation of the act of 1866 (5488, Rev. Sts.), it is, indeed, only a form of a charge of violation of the 99th (now 62nd) Article of War,' the act of Congress merely furnishing a definition of the

'An examination of the opinions in the cases upon which the text is based discloses the fact that the distinction between the character of the general offence of embezzlement and the particular embezzlement defined in the act of June 14, 1866, now sec. 5488, Rev. Sts., is clearly set out and defined, the difference being so marked that it would be an error to charge the acts set out in the latter statute as a violation of the 60th article of war. These opinions were rendered with reference to the trials of officers, which trials were published in the following general court-martial orders of the War Department: 43, 86, of 1868; 27, 34, of 1872, and 7, of 1873.

In all of these cases, except the last one, the officers were tried, among other offences, for illegally withdrawing from the authorized depositories or applying to a purpose not authorized by law, money intrusted to them, and in each of these cases the money so withdrawn or misapplied was furnished or intended for the military

offence. The act, it may be added, furnishes also a measure of punishment which may properly aid, though it need not necessarily govern, service, but the offences were charged under the act of June 14, 1866, now sec. 5488, Rev. Sts., and not under what is now subdivision 9 of the 60th article of war.

The officer named in the last order was tried under the act of March 2, 1863, now the 60th article of war, for embezzlement, and not for any acts legitimately chargeable under the act of June 14, 1866.

*

In remarking upon the general offence of embezzlement as then set out in the 39th Article of War of the articles of 1806, and upon the embezzlement defined in the act of June 14, 1866, Judge-Advocate General Holt, in his opinion upon the case in G. C. M. O., 34, supra, says: 66* * The court may well be supposed to have construed the 39th Article as contemplating an embezzlement or misapplication with fraudulent intent, and to have acquitted on the ground that there was upon the testimony a reasonable doubt as to the existence of such intent. But if this conclusion be accepted, the fact remains that no such construction could properly govern in connection with the other charge (embezzlement under the act of June 14, 1866). The statute of 1866, in view of which it was preferred, is the expression of extreme vigilance in regard to the proper use and disposition of the public moneys, found by the experience of the Government to have become imperatively necessary to be observed. It provides an additional safeguard of the public treasury by enacting that any disbursing officer who shall withdraw, transfer, or apply any of the public funds intrusted to him for any purpose not authorized by law shall be deemed guilty of a felonious embezzlement and be punished accordingly. The intent of the officer, whether innocent or fraudulent, enters in no manner into the statutory offence. If his act of withdrawal, application, etc., of the funds is simply one not authorized by existing law, he is guilty of the crime here defined by Congress. His intent, if innocent, may perhaps be considered in mitigation of punishment, but can not be relied upon as a legal bar against conviction. The offence created by this act belongs to the class known as mala prohibita, but it is upon the repression of this class of offences that the safety of the public treasury largely depends.

In the publication to the Army of this case, the Secretary of War, approving the views of Judge-Advocate General Holt, said: "In the opinion of the Secretary of War, they might well have convicted the accused of at least a portion of the charged violations of the act of June 14, 1866 (now sec. 5488, Rev. Sts.), a statute enacted for the more complete protection of the Treasury, and which without regard to the intent of the offender denounces all withdrawals from a public depository or dispositions of public moneys not authorized by express law."

*

*

*

As a rule, therefore, acts defined in sec. 5488, Rev. Sts., have been brought to trial as embezzlement under this section in violation of the 62d article of war, and not under the 60th article of war.

See in this connection in addition to the cases already cited those published in the following general court-martial orders (War Department): 5, of 1869; 21, 58, 81, of 1874; 52, of 1877; 5, of 1881; 30, of 1883.

See also S. O. 172, A. G. O., of 1899 (order publishing case of Capt. O. M. Carter, Corps of Engineers). See further, O. M. Carter v. McClaughry (105 Fed. Reporter, p. 614). In the latter case the court, inter alia, said: "It is also contended that under the sixty-second article of war no charge can be preferred that is embraced in any other article, and that as the charge is that of embezzlement it is covered by either the first, fourth, or ninth paragraph of the sixtieth article of war. Assuming, but not deciding, that no charge can be laid under the Sixty-second Article of War if it is mentioned in any preceding article, still it is apparent that the embezzlement defined in section 5488, Revised Statutes, is not the offence denounced in either the first or fourth paragraph referred to, and I am also of the opinion that it is a species of embezzlement different from that defined in the ninth paragraph of the Sixtieth Article of War, since the money which is the subject of embezzlement under the latter article is money 'furnished for military service,' whereas under section 5488, the term 'money' comprehends any public money, whether appropriated for the military service or for other purposes. The offence denounced in section 5488 is much broader and more comprehensive than the other, the former being the application by a disbursing officer of money to any unauthorized purpose, whilst under the ninth paragraph mentioned the money which is the subject of the embezzlement is money appropriated specifically for the military service, and it is quite probable from the context of the entire paragraph that the term ‘embezzlement,' as there employed, means such an offence as is generally understood where one having the money of another in his custody appropriates it to his own use with felonious intent, intending to deprive the true owner thereof."

the discretion of a court martial in imposing sentence. XXXIII, 495, November, 1872. But held, that to constitute such embezzlement it is not necessary that there should have been a personal conversion of the funds or an intent to defraud. The object of the law is to provide a safeguard against the misuse and diverting from their appointed purpose of public moneys, and the intent of the offender, whether fraudulent or not, enters in no respect into the statutory crime.1 If the withdrawal or application of the funds is simply one not prescribed or authorized by law, the offence is complete. XXV, 588, May, 1868; XXVII, 116, July, 1868; XXXIII, 494, November, 1872; XXXVIII, 96, May, 1876. An absence, however, of criminal motive in the illegal act may be shown in mitigation of sentence in a military case. XXXIII, 494, supra. So, held, that it constituted no defense to a charge of an embezzlement of this class (though it might be shown in mitigation of punishment) that the officer had restored to the public depository the funds illegally withdrawn by him before a formal demand was made for the same. XXV, 588, supra.

155. It is a defence to a charge (under this Article) of the embezzlement defined in Sec. 5490, Revised Statutes, as consisting in a failure. to safely keep public moneys by an officer charged with the safekeeping of the same, that the funds alleged to have been embezzled were, without fault on the part of the accused, lost in transportation or fraudulently or feloniously abstracted. I, 435, November, 1862.

156. In view of the injunction and definition of Secs. 3622 and 5491, Rev. Sts., an officer who, in his official capacity, receives public money (not pay or an allowance) which he fails duly to account for to the United States, is guilty of embezzlement. The statute makes no distinction as to the sources from which the money is derived or the circumstances of its receipt. Nor is it material whether or not the officer actually converted it to his own use or what was the motive of his disposition of it. So held that an officer who, having claimed and exacted certain moneys of the United States from government contractors, failed to pay the same into the Treasury, or to duly account therefor, was guilty of embezzlement under this Article. 52, 138, February,

1892.

157. Where an officer allowed to an enlisted man and paid to him, out of certain public funds consisting of the proceeds of a public sale of condemned quartermaster stores, an amount of ten per centum on the total of such proceeds, as a compensation for the services of such man as auctioneer at the sale, held that such payment was illegal and unau

1 See remarks of the Secretary of War in G. C. M. O., 34, War Department, 1872, quoted in preceding note.

2 Compare 14 Opins. At. Gen., 473.