310. A soldier was convicted of "manslaughter," but the findings and sentence were disapproved. He was then brought to trial on a charge of mutiny, as committed on the occasion of the homicide, the latter being alluded to in the specification as an incidental circumstance of aggravation, and was found guilty and sentenced. Held that the accused was not, in the sense of this Article, "tried a second time for the same offence," the mutiny not consisting in the act of homicide but constituting a distinct offence. 26, 284, September, 1888. 311. There cannot, in view of this Article, be a second trial where the offence is really the same though it may be charged under a different description and under a different article of war. Thus, where the Government elects to try a soldier under the 32d Article for "absence without leave," or under the 42d for "lying out of quarters," and the testimony introduced develops the fact that the offence was desertion, the accused, after an acquittal or conviction, cannot legally be brought a second time to trial for the same absence charged as a desertion. 34, 401, August, 1889. Held, 312. It is not misrepresentation or concealment by an applicant for enlistment, but the procuring of his enlistment by means of misrepresentation or concealment, together with the receipt of pay or allowance, which constitutes the military offence of fraudulent enlistment under the act of Congress approved July 27, 1892. therefore, where a soldier was tried for and convicted of fraudulent enlistment in procuring his enlistment by means of a misrepresentation or concealment, that to again try him for the same enlistment on account of another misrepresentation or concealment subsequently discovered would be a second trial for the same offence within the meaning of this Article. Card 2768, January, 1897. 313. The reconsideration by a court martial of a finding, whether of guilty or not guilty, when duly reconvened for that purpose, is not a second trial within the meaning of this Article. The original and revised proceedings are merely parts of one and the same trial.1 Card 5654, July, 1899. ONE HUNDRED AND THIRD ARTICLE. No person shall be liable to be tried and punished by a general court-martial for any offence which appears to have been committed more than two years before the issuing of the order for such trial, unless, by reason of having absented himself, or of some other manifest impediment, he shall not have been amenable to justice within that period. No person shall be tried or punished by a court-martial for desertion in time of peace and not in the face of an enemy, committed more than two years before the arraignment of such person for such offence, unless he shall 1See 6 Opins. At. Gen., 200, 204; 7 id., 338; 18 id., 113; Swaim v. U. S., 165, U. S., 553. meanwhile have absented himself from the United States, in which case the time of his absence shall be excluded in computing the period of the limitation: Provided, That said limitation shall not begin until the end of the term for which said person was mustered into the service. 314. The "order for such trial," within the meaning of this Article, is the reference of the charges to the court for trial, and not the order appointing the court. Card 1646, August, 1895. 315. The mere fact that the offence was concealed by the accused and remained unknown to the military authorities for more than two years, constitutes no "impediment" in the sense of the Article.' XXI, 635, September, 1866; L, 633, August, 1886. 316. A mere allegation in a specification, to the effect that the whereabouts of the offender was unknown to the military authorities during the interval of more than two years which had elapsed since the offence, is not a good averment of a "manifest impediment" in the sense of the Article. XXXV, 640, October, 1874. 317. The liability to trial after discharge, imposed by the last clause of Art. 60, held subject to the limitation prescribed in Art. 103.2 XII, 481, 536, July and August, 1865; XV, 133, April, 1865; XXI, 4, November, 1865; XXVI, 670, July, 1868. And so held as to the liability to trial after the expiration of the term of enlistment, under Art. 48. XXXI, 384, May, 1871. 3 318. The prohibition of the Article relates only to prosecutions before general courts martial; it does not apply to trials by inferior courts. So, courts of inquiry may be convened without regard to the period which has elapsed since the date or dates of the act or acts to be investigated. XLII, 213, March, 1879. Nor does the rule of limitation apply to the hearing of complaints by regimental courts under Art. 30. XXXI, 452, June, 1871. 319. In view of this Article it is the duty of the Government to prosecute an offender within a reasonable time after the commission of the offence. 21, 156, December, 1887. 320. The limitation is properly a matter of defence to be specially pleaded and proved. 21, 156, December, 1887; 40, 476, May, 1890; 59, 278, May, 1893; 65, 346, June, 1894. accused is assumed to waive the right to special plea in bar. By a plea of guilty the plead the limitation by a LVI, 75, April, 1888. But under a plea of not 114 Opins. At. Gen., 52, 266–268. 214 Opins. At. Gen., 52. 3 See, to a similar effect, 13 Opins. At. Gen., 462; 15 id., 152; 16 id., 170; also, In re Bird, 2 Sawyer, 33. See 6 Opins. At. Gen. 239. 5 In re Bogart, 2 Sawyer, 396, 397; In re White, 17 Fed. Rep., 723; In re Davison, 21 Fed. Rep., 618; In re Zimmerman, 30 Fed. Rep., 176; G. O. 22 of 1893. pare U. S. v. Cooke, 17 Wallace, 168. And com guilty the limitation may be taken advantage of by evidence showing that it has taken effect. 21, 156, supra; 55, 266, September, 1892. 321. By the absence referred to in the original Article, in the term "unless by reason of having absented himself"-is believed to be intended, not necessarily an absence from the United States, but an absence by reason of a "fleeing from justice," analogous to that specified in Sec. 1045, Rev. Sts., which has been held to mean leaving one's home, residence or known abode within the district, or concealing one's self therein, with intent to avoid detection or punishment for the offence against the United States. Thus held that, in a case other than desertion, it was not essential for the prosecution to be prepared to prove that the accused had been beyond the territorial jurisdiction of the United States in order to save the case from the operation of the limitation. 58, 268, March, 1893; 64, 48, February, 1894. 322. A court martial, in a case of an offence other than desertion, sustained a plea of the statute of limitations in bar of trial for the reason that the judge-advocate could produce no evidence to show that the accused was not within the territorial jurisdiction of the United States during his absence. Held that such showing was not necessary, and that it was sufficient that the absence should be any unauthorized absence from the military service whereby the absentee evades and for the time escapes trial. This construction of the term "absented himself" in the Article corresponds to that placed on the words "fleeing from justice," as used in the statutes of the U. S. to designate those whom the statutes of limitation for the prosecution of crimes do not protect. 64, 137, 151, March, 1894. ONE HUNDRED AND FOURTH ARTICLE. No sentence of a court-martial shall be carried into execution until the same shall have been approved by the officer ordering the court, or by the officer commanding for the time being. 323. This Article is properly to be complied with by an approval of the sentence (where the same is approved in fact) by "the officer ordering the court," &c., although-as in a case of a sentence of dismissal in time of peace--he may not be empowered finally to confirm and give effect to the sentence. His approval is required as showing that he does not, as he is authorized to do, disapprove. IX, 15, May, 1864. 324. The approval of the sentence indicated by this Article should 1U. S. r. O'Brien, 3 Dillon, 381; U. S. e. White, 5 Cranch C. C., 38, 73: Gould & Tucker, Notes on Rev. Sts., 349. 2See G. C. M. O. 19, A. G. O., 1894. properly be of a formal character. An endorsement, signed by the commander, of the single word "approved,”—a form not unfrequently employed during the civil war-though, strictly, sufficient in law (XXVI, 511, April, 1868), is irregular and objectionable. So, held that a mere statement, written in or upon the proceedings, in transmitting them to the President, that the record was "forwarded" for the action of superior authority, was insufficient as not implying the requisite approval according to the Article. II, 99, March, 1863; VII, 476, April, 1864. And similarly held of a mere recommendation that the proceedings be approved by such authority. IX, 50, 54, May, 1864; Card 2844, January, 1897. The article requires the sentence to be "approved." Held, therefore, where a sentence had been duly adjudged, that a formal approval of the "findings" only, did not meet the requirement of the Article. Card 5095, October, 1898. 325. Held that a department commander could not legally depute a staff or other officer to act for him, while absent from his headquarters on an expedition against Indians, in approving, &c., the sentences of courts martial previously duly convened by him. XXXVII, 429, March, 1876. 326. The officer commanding for the time being," indicated in this Article, is an officer who has succeeded to the command of the officer who convened the court; as where the latter has been regularly relieved and another officer assigned to the command; or where the command of the convening officer has been discontinued, and merged in a larger or other command, at some time before the proceedings of the court are completed and require to be acted upon. Thus, where, under these circumstances, a separate brigade has ceased to exist as a distinctive organization and been merged in a division, or a division has been similarly merged in an army or department, the commander of the division in the one case and of the army or department in the other, is the officer commanding for the time being," in the sense of the Article. VIII, 633, July, 1864; IX, 621, September, 1864; XIII, 298, January, 1865; XX, 153, 194, November, 1865; Cards 5231, October, 1898; 5274, 5294, November, 1898; 5471, December, 1898. 327. Where, pending action upon the sentence of a general courtmartial convened by a division commander, the division was discontinued and the organizations composing it were distributed among the divisions of a corps, held that the commander of such corps was the "officer commanding for the time being" and the proper officer to act upon the sentence. Cards 5274, 5294, November, 1898. 328. Where, pending action upon the sentence of a general court 1See A. R. 195, as amended (213 of 1901). martial by a department commander, the regiment to which the accused belonged was transferred to an army corps outside the department, held, as the department command still existed, that the commander thereof remained the proper authority to act upon the sentence. Cards 4942, September, 1898; 7166, October, 1899. 329. Where a separate brigade was merged in a division, advised that a court convened by the commander of the separate brigade need not be dissolved on account of the merger, but may legally try all the cases which have been referred to it, the division commander becoming the reviewing authority. Card 5151, October, 1898. 330. Where, before the proceedings of a garrison court convened by a post commander were completed, the post command had ceased to exist, and the command become distributed in the department, held that the department commander, as the legal successor of the post commander, was the proper authority to approve the sentence under this Article. XLII, 48, November, 1878. 331. The fact that the officer who approves the sentence is the "officer commanding for the time being," i. e., has succeeded to the command of the officer who convened the court, should be disclosed by his action on the case as reviewing authority. Cards 5078, 5079, 5080, September, 1898. 332. The officer authorized to act upon the sentence is the proper authority to promulgate by order the proceedings of the court and his action thereon. If the regiment of the accused has moved outside the limits of the command at the date of such promulgation, a copy of the order promulgating the findings and sentence should be forwarded to the commanding officer of the accused. Card 5235, November, 1898. 333. Where a department command was discontinued, without being transferred to or included in any other specific command, held that the General in command of the Army was "the officer commanding for the time being," and the proper authority to act, under this Article and the 109th, upon the proceedings and sentence of a court which had been ordered by the department commander but whose judgment had not been completed at the time of the discontinuance of the command. XV, 503, July, 1865. 334. A. R. 187 (205 of 1901) prescribes that the military establishment is under the orders of the Commanding General of the Army in that which pertains to its discipline and military control. A. R. 189 (207 of 1901) prescribes that territorial departments are established and their commanders assigned by direction of the President, and the 104th Article of War declares that no sentence of a court-martial shall be carried into execution until the same shall have been approved by the 71359-09-8 |