1 ple. V, 500, December, 1863; VII, 538, April, 1864; XXIII, 415, April, 1867; XXVIII, 126, September, 1868; XXIX, 250, September, 1869; XXXI, 296, April, 1871; XXXII, 255, January, 1872; XXXIII, 175, July, 1872. 289. A sentence of penitentiary confinement in a case of a purely military offence is wholly unauthorized and should be disapproved. Effect cannot be given to such a sentence by commuting it to confinement in a military prison, or to some other punishment which would be legal for such offence. XXIV, 202, January, 1867;- XXVII, 299, October, 1868; XXX, 603, August, 1870; Card 439, October, 1894. Nor, in a case of such an offence, can a severer penalty--as death-be commuted to confinement in a penitentiary. XI, 413, February, 1865. 290. Nor can penitentiary confinement be legalized as a punishment for purely military offences by designating a penitentiary as a "military prison," and ordering the confinement there of soldiers sentenced to imprisonment on conviction of such offences. XXXV, 377, May, 1874; XXXIX, 659, September, 1878. 291. An offence duly charged as "Conduct to the prejudice of good order and military discipline," or as a violation of the 60th Article of War, which, however, is in fact a larceny, embezzlement, violent crime, or other offence made punishable with penitentiary confinement by the law of the State, &c., may legally be visited with this punishment. IX, 281, January, 1864; 28, 302, November, 1888. 292. The term "penitentiary," as employed in this Article, has reference to civil prisons only--as the penitentiary of the United States or District of Columbia at Washington, the public prisons or penitentiaries of the different States, and the penitentiaries "erected by the United States" (see Sec. 1892, Rev. Sts.) in most of the Territories. The term State or State's prison in a sentence is equivalent to penitentiary. IX, 70, May, 1864. 293. A military prisoner duly sentenced or committed to a penitentiary, becomes subject to the government and rules of the institution. XXIX, 296, September, 1869. 294. A court martial, in imposing by its sentence the punishment of confinement in a penitentiary, is not required to follow the statute of the United States or of the State, &c., as to the term of the confine See G. O. 4, War Dept., 1867; also the action taken in cases in the following General Orders: G. O. 21, Dept. of the Platte, 1866; do. 21, Id., 1871; do. 44, Eighth Army Corps, 1862; G. C. M. O. 34, 35, 43, 46, 72, 73, Dept. of the Missouri, 1870. 2 But see Par. 940, A. R, as amended by G. O. 3, A. G. O., 1901 (1041 of 1901). In a case of larceny, the court should inform itself as to whether the value of the property stolen be not too small to permit of penitentiary confinement for the offence under the local law. See G. O. 44, Eighth Army Corps, 1862; G. C. M. O. 63, Dept. of the Platte, 1872. 'See pars. 940 and 941, A. R. (1041 and 1042 of 1901). ment. It may adjudge, at its discretion, except as provided in the 58th Article of War, a less or a greater term than that affixed by such statute to the particular offence. At the same time the court will often do well to consult the statute, as indicating a reasonable measure of punishment for the offence. XXVIII, 247, November, 1868. 295. Where a court martial specifically sentences an accused to confinement in a “military prison," he cannot legally be committed to a penitentiary, although such form of imprisonment would be authorized by the character of his offence. XXIX, 250, September, 1869. But where a sentence of confinement is expressed in general terms, as where it directs that the accused shall be confined "in such place or prison as the proper authority may order," or in terms to such effect, held that the same may, under this Article, legally be executed by the commitment of the party to a penitentiary, to be designated by the reviewing officer or Secretary of War, provided of course the offence is of such a nature as to warrant this form of punishment. XLI, 664, August, 1879; XLII, 218, March, 1879. 296. Held that penitentiary confinement could not legally be adjudged upon a conviction of a violation of the 21st Article, alleged in the specification to have consisted in the lifting up of a weapon (a pistol) against a commanding officer and discharging it at him with intent to kill. By charging the offence under this Article, the Government elected to treat it as a purely military offence subject only to a military punishment. 35, 141, September, 1889; 64, 385, April, 1894. So, upon a conviction of joining in a mutiny, in violation of Art. 22, held that a sentence of confinement in a penitentiary would not be legal although the mutiny involved a homicide, set forth in the speci fication as an incidental aggravating circumstance. 26, 284, September, 1888. To have warranted such a punishment in either of these cases the Government should have treated the act as a "crime," and charged and brought it to trial, as such. under Art. 62. 297. Where the act is charged as a crime under Art. 62, and charge and specification taken together show an offence punishable with confinement in a penitentiary by the law of the locus of the crime, the sentence may legally adjudge such a punishment. So held-in a case where charge and specification together made out an allegation of perjury under Sec. 5392, Rev. Sts. 26, 497, September, 1888. 298. "Obtaining money under false pretenses" is punishable by confinement in a penitentiary by the laws of Arizona. A sentence of courtmartial, imposing this punishment, on conviction of an offence of this description committed in this Territory, charged as a crime under Art. 62, held authorized by Art. 97. 31, 117, March, 1889. 299. A punishment of confinement in a penitentiary, where legal, may be mitigated to confinement in a military prison or at a military post. 29, 209, January, 1889. 300. A discharged soldier, serving a sentence of confinement in a State or Territorial penitentiary, still remains under military control, at least so far that his sentence may, by competent military authority, or by the President, be remitted, or may be mitigated-as for example to confinement in a military prison or at a military post. 17, 216, January, 1887; 29, 209; January, 1889; 63, 370, February, 1894. NINETY-EIGHTH ARTICLE. No person in the military service shall be punished by flogging, or by branding, marking, or tattooing on the body. NINETY-NINTH ARTICLE. No officer shall be discharged or dismissed from the service, except by order of the President, or by sentence of a general court-martial; and in time of peace no officer shall be dismissed, except in pursuance of the sentence of a court martial, or in mitigation thereof. ONE HUNDREDTH ARTICLE. When an officer is dismissed from the service for cowardice or fraud, the sentence shall further direct that the crime, punishment, name, and place of abode of the delinquent shall be published in the newspapers in and about the camp, and in the State from which the offender came, or where he usually resides; and after such publication it shall be scandalous for an officer to associate with him. 301. The terms "cowardice" and "fraud," employed in this Article, may be considered as referring mainly to the offences made punishable by Articles 42 and 60. With these, however, may be regarded as included all offences in which fraud or cowardice is necessarily involved, though the same be not expressed in terms in the charge or specification. XI, 671, April, 1865. 302. Though the injunction of the Article, as to the direction to be added in the sentence, should of course regularly be complied with, a failure so to comply will not affect the validity of the punishment of dismissal adjudged by the sentence.' XXII, 508, December, 1866; XXVII, 652, May, 1869. ONE HUNDRED AND FIRST ARTICLE. When a court martial suspends an officer from command, it may also suspend his pay and emoluments for the same time, according to the nature of his offence. SEE SUSPENSION. 1Note the action taken in the case published in G. C. M. O. 27, War Dept., 1872. The declaration of the Article, that after the publication, "it shall be scandalous for an officer to associate with" the dismissed officer, though it has, as in cases published in G. O. (A. & I. G. O.) of May 13, 1820, and G.O. 168, Dept. of the Missouri, 1865, been incorporated in the sentence, is not intended to be, and should not be so incorporated. ONE HUNDRED AND SECOND ARTICLE. No person shall be tried a second time for the same offence. 303. The Constitution (Art. V of the Amendments) declares that no person shall be subjected, for the same offence, to be twice put in jeopardy of life or limb." The U. S. courts, in treating the term "put in jeopardy" as meaning practically tried, hold that the" jeopardy' indicated "can be interpreted to mean nothing short of the acquittal or conviction of the prisoner and the judgment of the court thereon."1 So, held that the term "tried," employed in this Article, meant duly prosecuted, before a court-martial, to a final conviction or acquittal; and, therefore, that an officer or soldier, after having been duly convicted or acquitted by such a court, could not be subjected to a second military trial for the same offence, except by and upon his own waiver and consent. That the accused may waive objection to a second trial was held by Attorney General Wirt in 1818, and has since been regarded as settled law. V, 172, October, 1863; Card 5766, January, 1899; VI, 62, and VIII, 37, March, 1864. 2 304. Where an officer or soldier has been duly acquitted or convicted of a specific offence, he cannot, against his consent, be brought to trial for a minor offence included therein, and an acquittal or conviction of which was necessarily involved in the finding upon the original charge. Thus a party convicted or acquitted of a desertion cannot afterwards be brought to trial for an absence without leave committed in and by the same act. See §§ 1093 and 1359, post. 305. Held that there was no "second" trial, in the sense of the Article, in the following cases, viz: Where the party, after being arraigned or tried before a court which was illegally constituted or composed, or was without jurisdiction, was again brought to trial before a competent tribunal. IX, 261, June, 1864; XVIII, 214, September, 1865; XXVIII, 68, August, 1868; Cards 1645, September, 1895; 4036, April, 1898. Where the accused, having been arraigned upon and having pleaded to certain charges, was rearraigned upon a new set of charges substituted for the others which were withdrawn. XIX, 212, October, 1865. Where one of several distinct charges upon which the accused had been arraigned was withdrawn pending the trial, and the accused, after a trial and finding by the court upon the other charges, was brought to trial anew upon the charge thus withdrawn. V, 213, October, 1863. Where, after proceedings commenced but discontinued without a finding, the accused was brought to trial anew upon the same charge. V, 192, October, 1863. Where, after having been 1United States v. Haskell, 4 Wash. C. C., 402, 409. maker, 2 McLean, 114; United States . Gilbert, 2 Perez, 9 Wheaton, 579; 1 Opins. At. Gen., 294. 21 Opins. At. Gen., 233. And see also 6 id., 200, 205. And see United States v. Shoe- acquitted or convicted upon a certain charge which did not in fact state the real offence committed, the accused was brought to trial for the same act but upon a charge setting forth the true offence. XXV, 675, June, 1868; XXVII, 604, April, 1869. Where the accused was brought to trial after having had his case fully investigated by a different court which however failed to agree in a finding and was consequently dissolved. XXV, 73, September, 1867. Where the first court was dissolved because reduced below five members by the casualties of the service pending the trial. VI, 62, March, 1864. Where, for any cause, without fault of the prosecution, there was a "mistrial," or the trial first entered upon was terminated, or the court dissolved, at any stage of the proceedings before a final acquittal or conviction. V, 192, October, 1863; 32, 29, April, 1889. 66 306. Where an officer or soldier, having been acquitted or convicted of a criminal offence by a civil court, is brought to trial by a courtmartial for a military offence involved in his criminal act, he can not plead a former trial," in the sense of this Article. So where the trial for the military offence has preceded, he can not plead autrefois acquit or convict to an indictment for the civil crime committed in and by the same act. V, 140, October, 1863. 2 307. Where the accused has been once duly convicted or acquitted, he has been "tried" in the sense of the Article, and can not be tried again, against his will, though no action whatever be taken upon the proceedings by the reviewing authority (XXXI, 300, April, 1871); or, though the proceedings, findings (and sentence, if any) be wholly disapproved by him.3 IX, 611, September, 1864; XXVII, 348, November, 1868;. 605, April, 1869; XXXVIII, 38, April, 1876; 60, 177, June, 1893. It is immaterial whether the former conviction or acquittal was approved or disapproved. 36, 259, November, 1889. 308. That an accused has been, in the opinion of the reviewing authority, inadequately sentenced, either by a general or an inferior court, cannot except his case from the application of this Article; though insufficiently punished, he cannot be tried again for the same offence. VII, 17, January, 1864; XXVIII, 69, August, 1868. 309. Where an officer, who had killed a superior officer in an altercation at a military post, was brought to trial before a civil court on a charge of murder and acquitted, and was subsequently arraigned before a court martial for an offence against military discipline involved in his criminal act, held that a plea of former trial interposed by him was properly overruled by the court. 65, 268, 269, June, 1894. 1See United States v. Perez, 9 Wheat., 579. 2See 6 Opins. At. Gen., 413, 506. 3 Compare Macomb, § 159; O'Brien, 277; Rules for Bombay Army, 45; McNaughton, 132-133. |