Absent Members. The right of an absent member to take or resume his seat, and take part in the proceedings of a court, has been a subject of discussion. Where a general court-martial has been ordered, and the names of the officers and supernumeraries to compose it are set forth in the warrant, and, by reason of the nonattendance of one of the officers on the first day, a supernumerary takes his place, and the court, thus organized, proceeds to business, the absent member cannot properly thereafter be added to the court upon his arrival, until the case on trial has been disposed of, if at all.1 Attorney-General Berrien says,-It is irregular for a member of a court-martial who has been absent during a portion of a trial, and who therefore did not hear the witnesses testify, to take part in sentencing the accused. Attorney-General Cushing says,-In practice it is unusual for members, who have not heard the whole trial, to participate in giving judgment; but there is no law to prohibit their doing so, or to compel them if they refuse. Whether the absent members shall act or not upon his return, must depend upon his own views of propriety, and not upon those of the court, which is nowhere clothed with power to expel a member.3 Should such an absent member resume his seat, it should appear upon the record, and, if the court thinks, under the circumstances, that the member should be excluded, its only recourse is to suspend its proceedings and report the matter to the reviewing authority. Judge-advocate's Absence. Where the judge-advocate is absent, the court should suspend its proceedings until his return. He cannot authenticate proceedings which have not taken place in his presence. 1 I. Opinions Att'y Gen. Nov. 18, 1824. II. Opinions Att'y Gen., March 2, 1831. VII. Opinions Att'y General, April 11, 1855. Excusing Members. cuse one of its members. A member may be relieved by order of the convening authority, but, after a trial has commenced, only the most urgent necessity should prompt the reviewing officer so to act. The court has no power to ex Nolle Prosequi. When a court has commenced a trial and arraigned a prisoner, it must proceed to judgment, unless the charges are withdrawn, or a nolle prosequi entered. Some question has arisen as to who may enter a nolle prosequi. It is held that the President has power to order a nolle prosequi at any stage of a criminal proceeding in the name of the United States; and the Secretary of War, as the constitutional organ of the President, has this power. The convening authority, and even the judge-advocate of his own motion, may move to enter a nolle prosequi. The court will decide whether to allow it or not. 1 Where the convening officer, or higher authority, directs the entering of a nolle prosequi through the judgeadvocate, the court-martial should allow it to be entered, since the prosecution proceeds by order of the government, and it ought to be allowed to abandon a case if it thinks proper. Some discussion has arisen as to whether a court itself could direct the entering of a nolle prosequi, or a withdrawal of the charge. The following remarks in a late order strike the author as the correct law upon this point: "Where charges and specifications, duly preferred, have undergone proper inquiry at post headquarters, received official scrutiny and revision at these headquarters, and are referred to the judge-advocate of a court-martial for trial, it is the duty of the court to well and truly try and 1 V. Opinions Att'y Gen. p. 729. determine according to the evidence, etc.,' the charges etc., presented; and they are not authorized and cannot be justified or permitted to negative the order of the Commanding General of the department in relation thereto. The judge-advocate of a general court-martial is the prosecuting officer of the government, and as such, is responsible for the presentation of the evidence concerning the same, and is not subject to the orders of the court when they are in conflict with the orders referring the case for trial. If the judge-advocate failed to present evidence attainable, or if, when presented, it failed to establish the guilt alleged, the court should acquit the accused in whole, or in part, according to the nature and extent of the testimony, but to do more is to assume powers not consistent with the honored and responsible duties of triers of a cause in hearing." 1 Hours of Session. Proceedings of trials can be carried on only between the hours of eight in the morning and three in the afternoon, excepting in cases which, in the opinion of the officer appointing the court, require immediate example. When the latter case arises, the order convening the court should contain the proviso," The court is authorized to it without regard to hours," or words to that effect. It is a fatal defect where the court sits outside these hours unless specifically authorized. Control over Court. A military court is not under the control or dictation of the convening authority or any person in conducting its proceedings. Tytler says, "The king can no more interfere with the procedure of courts-martial in the execution of their duty than he can with that of any of the fixed courts of justice." The same is true in this country. Where a court refused to comply with an order from the military district com 3 1 G. C. M. O. 79, D. P. but see Chapter VI. p,87. 2 Article 94. P. 130. 66 mander, requiring that in all cases where the accused pleaded guilty," evidence exhibiting the facts of the offense should be introduced by the prosecution and entertained by the court, the judge-advocate general advised that the dissolving of the court, with a reprimand was the only remedy of the convening authority. For him to bring to trial the members of the court who had concurred in the refusal, with a view of establishing their offense by the testimony of other members and the judge-advocate, would be without precedent and improper.1 Unless the members act willfully, maliciously, and corruptly, they cannot be held responsible for their action. in any case so long as they have jurisdiction, and confine themselves to the rules of procedure prescribed by law. Joinder. No legal objection exists, when two or more persons have joined in concert in the commission of an offense, to joining them in the charges, specifications, and trial, though the practice has been to try but one case at a time. The practice of trying enlisted men by court-martial on joint instead of separate charges for desertion, theft of public property, and offenses of a similar type, not necessarily involving concert of action, being at variance with approved custom, is regarded as injurious to the service and will be discontinued.? Where persons are joined in trial each should have the opportunity of challenge, of examining and cross-examining witnesses, in fact, the same rights which are accorded a prisoner when tried singly. The proceedings should be made up separately in each case. Contempts of Court. Courts-martial are authorized in certain cases to punish for contempts. They may punish, at discretion, any person who uses any menacing 1 Opinions J. A. G. p. 122. 2 G. O. 78, A. G. O. Aug. 7, 1872 words, signs, or gestures, in its presence, or who disturbs its proceedings by any riot or disorder. They cannot punish their members in such cases, but any member is liable to punishment at the discretion of another courtmartial, and his improper language or other disorderly conduct should be reported to the authority appointing the court by appropriate charges or otherwise, as the court of which he is a member may direct. Courts-martial must limit themselves strictly to this article. They are not authorized to punish persons for contempts committed out of their presence; although if a military person should be guilty of such conduct, the attention of the reviewing authority might very properly be called to it. In 1873, an officer acting as counsel for the accused was tried for sending a contemptuous message to a court after having been excluded from the court room.2 When military persons are guilty of contempts, they may either be punished summarily, or be placed in arrest, and have charges preferred against them. The contempts rendered punishable summarily by this article are of a public and self-evident kind, not depending on any interpretation of law admitting explanation, or requiring further investigation. Some doubt has arisen as to the power of courts-martial to punish civilians for contempts committed in violation of the 86th Article. Under the old article, in which the authority to punish does not seem quite as strong as in the new, De Hart inclined to the right to punish civilians, and Benét maintained that the right existed. Both hold, however, that as courts-martial have no appointed means of enforcing their mandates against civil 1 Article 86. 3 P. 106-108. 2 G. C. M. O. 37, A. G. O. Oct. 3, 1873. |