the case. The article is a restriction upon the court, as well as a benefit to the accused.1 (Fourth.) Total or Partial want of Specification. This would be a valid plea in bar, where the specification is vague as to time, place, or circumstances. In the case of Lieut. F—, of the Militia, the accused declined to plead to the specification to the first charge, and to the first charge, on the ground that the specification. was defective, in not alleging the commission of any particular act but merely repeated the words of the charge, stating a conclusion rather than a fact. The court overruled the objection, but the reviewing authority decided that it was well taken." (Fifth.) Pleas in Abatement. A plea in abatement is a temporary plea in bar. In practice, it has merely the effect, if granted, of delaying the trial. It might be resorted to in the following cases :— (a) Where the accused had not been furnished with a copy of the charges preferred against him. (b) Where the copy furnished is materially different from the one upon which he is arraigned. (c) Where there is a misnomer or false addition. In such case, the accused is bound to state his proper name, and point out the correct changes, otherwise he may be tried on the charges as they stand. If the accused makes no objection to the name or designation under which he is charged, he may be tried and punished, even though they be erroneous.3 In the first two cases the court should grant sufficient delay to enable the accused properly to defend himself. Pleas in bar of Judgment. These are pleas in way of 1 I. Opinions Attorney General July 25, 1820. VI. Ibid. Dec. 30, 1853. G. C. M. O. 26, Army of the Potomac, July 26, 1864. III. Opinions Attorney-General, June 24, 1840. justification or excuse, and may present good cause why the accused should not be called upon to answer. The following cases would come under this head :- of the crime was non compos mentis. This is a generic term, and includes all the species of madness, whether it arise from 1, idiocy; 2, lunacy; 3, drunkenness; or 4, sickness.1 Idiots are persons born without understanding. In law they are held incapable of committing crimes. Lunatics. Lunacy is the state of one who has had understanding, but by disease, grief, or other accident has lost the use of reason.2 For crimes committed during actual lunacy a person is not responsible. Lunacy, however, is a thing of degrees, of great varieties, and it is exceeding difficult in many cases to obtain positive proof of its presence. 3 Sir Mathew Hale says: " "It is very difficult to define the indivisible line that divides perfect and partial insanity, but it must rest in circumstances duly to be weighed and considered both by the judge and jury, lest on one side there be a kind of inhumanity towards the defects of human nature, or on the other side too great indulgence given to great crimes." The onus probandi rests upon the party making this plea. Lucid Intervals. Lunatics frequently have lucid intervals, when there is a return, more or less complete, to a sane state. For a crime committed during such time, when the party is sufficiently sane to know right from wrong, he is responsible. It is the duty of a party who contends for a lucid interval to prove it; for a person 1 Bouvier's Law Dictionary, p. 234. Blackstone Com., § 304. I. Hale's P. C., p. 30. once insane is presumed so, until it is shown that he has had a lucid interval or has recovered.1 Intoxication. It is a rule of the common law that intoxication cannot be set up as an excuse for a criminal offense. In some cases it has been held that it aggravates rather than mitigates. But that this is true in all cases, is opposed to our sense of reason, and does not accord, it is believed, with the practice of courts-martial in this country. If an officer, for example, should drink, without any intention of becoming intoxicated, and, while under this influence, should refuse to obey a lawful command of his superior officer, while this would not excuse him, it would in many cases mitigate. Wharton says, although now drunkenness cannot be said to aggravate a crime in a judicial sense, yet it is well settled that it forms no defense to the fact of guilt.2 Upon this point there has been much discussion, and it would be impossible in a work of this kind to present the different views that have been maintained. One thing seems settled, that evidence of intoxication may be given in the prisoner's behalf, but why should such evidence be allowed if it is to have no effect? The effect must depend upon the circumstances of each case, and courts-martial must judge for themselves what value to give to it. When the question of premeditation or intent forms part of the charge, evidence of intoxication would be of value in determining the degree. Continental jurists divide drunkenness into three kinds, 1st, Intentional; 2d, Culpable; and 3d, Inculpable. In the first case, it is no excuse; in the second, it reduces the degree of criminality and mitigates the punishment; in the third, the liability to punishment ceases.3 1 Bouvier's Law Dictionary p. 89, and cases there cited. 2 Wharton's Am. Crim. Law, § 39. 3 Greenleaf on Evi, Note I, § 374. Sickness. A person from sickness may be non compos, so as to excuse him for the commission of a crime. In 1851, Captain K was charged with "mutinous conduct," "breach of arrest," etc. He pleaded guilty, but averred that he was in a state of temporary derangement produced by opium, administered to him by the physician of the post. The court found him "guilty" and sentenced him "to be cashiered;" but the President arrived at the conclusion, from the evidence, that he was laboring under temporary insanity, and refused to approve the sentence.1 Second. Where there is understanding and sufficient will, but not exerted at the time of the act. Example, An accidental injury while doing a lawful act. The act itself must be lawful and the injury resulting arise from ignorance, misfortune, or chance. If the act itself is unlawful, and a consequence ensue which the party did not foresee or intend, as the death of a man or the like, his want of foresight is no excuse. A difference here is also made between an act which is merely a malum prohibitum, and one in its original nature wrong and mischievous.2 Ignorance of Law. Ignorance as to law is no excuse for a criminal offense. Military men are presumed to be conversant with military law, general regulations, general and special orders which it is their duty to know, and ignorance will be no excuse for their non-observance. Mistake as to Law would often be a good plea in bar of judgment. In the case of Jenkins vs. Waldron, the court said," It would, in our opinion, be opposed to all the principles of law, justice, and sound policy to hold that officers, called upon to exercise their deliberate judg 1 G. O. 28, A. G. O., June 9, 1851. 11 Johns. (N. Y.) 121. Blacks. Com. § 27 and note 8. ments, are answerable for a mistake in law, either civilly or criminally, when their motives are pure and untainted with fraud or malice."1 Third. Where there is compulsion or evident necessity. Compulsion may be lawful or unlawful. When a person is compelled by lawful authority to do that which he ought to do the compulsion does not affect the validity of the act. Thus, in the case of an officer or soldier obeying the lawful command of his superior officer, he would be excused for any harm that might result. But the question as to lawful or unlawful compulsion in case of an order issued, brings up the extremely delicate question of the right to disobey the order of a superior officer. The Articles of War 2 declare that any officer or soldier3 who disobeys any lawful command of his superior officer shall suffer death, or such other punishment as a courtmartial may direct. The introduction of the word "lawful" shows that there may be some commands, issued by lawful authority, which an officer or soldier is not required to obey. In civil life it is a settled rule that a person committing an illegal act cannot justify his conduct upon the ground of a command from another. Is the same thing true in the army? In the case of McCall vs. McDowell the judge said,— "The circumstances of the two cases (in civil life and in the army) are entirely different. In the former case the party giving the command and the one obeying it are equal in the eye of the law. The latter does not act upon compulsion; he is a free agent, and at liberty to exercise his judgment in the premises. Personal respon See also Wilkes vs. Dinsman, 7 Howard, 131. 2 Art. 21. 3 The term "camp follower" is here introduced in the Articles recently proposed, |