opinion that the accused is guilty." All these are sufficient, but for the sake of uniformity the following form is recommended when the finding is "guilty" or "not guilty." The court, having maturely considered the evidence adduced, finds the accused Regiment U. S. Infantry: Of the specification, "Guilty," or "Not Guilty." As the findings of courts-martial are frequently anomalous, and do not contain the actual sense of the court, it is recommended to every court to be extremely careful at this stage of their proceedings to see that their findings are consistent. The gist of many charges under a specific article, for example, lies in a single word. A single case will illustrate. A person was tried under the 55th Article for "maliciously destroying the property of an inhabitant of the United States," and the court found him "guilty" except the word "maliciously," and proceeded to sentence him. Such finding was held void as his action did not constitute an offense under this article-if it was not malicious. To find "not guilty" of a specification, but "guilty" of the charge, where there is a single specification, would be an absurdity.1 Where the finding is guilty of the specification, but not guilty of the charge, or of any lesser kindred offense, there is nothing left upon which a sentence can rest. It is equivalent to finding that the state of facts set forth in the specification do not make out the specific offense charged.2 Where the evidence does not prove the averments set forth in the specifications, the accused is entitled to a G. O. 95, Army of Potomac, March 6, 1862. 2 Op. J. A. G. p. 179. verdict of acquittal; and where there is a doubt in the mind of a member, he should vote for acquittal, as it is considered better that many guilty men should go free rather than that one innocent man should suffer. Members of courts-martial should never forget the standard principle of criminal law, that a man is to be considered innocent until proved guilty. A court-martial may properly find as follows: 1st. Guilty or not guilty of all the charges and specifications, or of any particular charge or specification. In cases of virtual acquittal, the term "guilty" is improperly used. The phrase truly expressive of the judgment of the court would be "proved," or "the facts found as stated," adding in either case the words "but no criminality attached thereto." The term "guilty" should be employed only when the prisoner is convicted of an actual crime, or offense deserving the award of punishment.1 While acquitting an accused, the court may nevertheless animadvert on his conduct. Thus in 1827, in the case of Lieut. B., the court remarked as follows: "The court, while it acquits the accused of the technical crime of disobedience of orders, considers his conduct in refusing the summons to attend the commanding officer of his company highly improper and reprehensible." 2 Where there are a number of specifications to the same charge, the court may find "not guilty" of some of these specifications, but "guilty" of the charge, provided the evidence to the specification of which they find "guilty" is sufficient to constitute an offense under the charge. 2d. Guilty of certain parts of a charge or specification, and not guilty of others. The form of recording such a finding is "Of the charge 'G. O. 11, A. G. O. Feb. 15, 1851. 20. 4, A. G. O. Jan. 19, 1827. (or specification) 'guilty,' except the words and of the excepted words not guilty;"" or it may substi tute correct words or allegations in the place of excepted words, in which case it would be recorded "guilty except the words substituting therefor, etc." 3d. The court does honorably acquit the accused. Courts-martial, though finding "not guilty," may by their very silence leave an impression of guilt, and as the reputation and honor of an officer are largely in the hands of the court trying him, where entire innocence is proved, this form of finding would very properly be used. It should, however, be used with care. The Duke of Wellington, speaking on this point, said, "It is difficult and needless at present to define in what cases an honorable acquittal' is peculiarly applicable, but it must appear to all persons to be objectionable in a case in which any part of the transaction is disgraceful to the character of the party under trial. A sentence A sentence of honorable acquittal should be considered by the officers and soldiers of the army as a subject of exultation, but no man can exult in the termination of any transaction a part of which has been disgraceful to him; and, though such a transaction may be terminated by an honorable acquittal by a courtmartial, it cannot be mentioned to the party without offense, or without exciting feelings of disgust in others. These are not feelings which ought to be excited by the recollection and mention of a sentence of honorable acquittal." 4th. Where the accused is charged under a specific article, and the evidence does not prove the offense under this article, but does prove a lesser kindred offense, the finding may be "not guilty, but guilty of the lesser offense." In the case of Dynes vs. Hoover, the Supreme Court held that where a seaman was charged with deserting, and RARY TY FINDING. CATIA 155 the court found him "guilty of attempting to desert," the court had jurisdiction. So in the case of soldiers charged with desertion, a court frequently finds "not guilty, but guilty of absence without leave." It must be borne in mind, however, that the accused cannot be found guilty of another article setting forth an entirely different offense. Thus, where a soldier was charged under the 39th article with "sleeping on post" and the court found him "not guilty," but "guilty" of the 40th article, (quitting his guard, etc., without leave) the Judge-Advocate General held the finding irregular and void. In 1864 the Secretary of War decided that an accused brought to trial under any specific article might legally be convicted under the 99th article, where the evidence established the commission of an act contrary to good order and military discipline, but did not sustain the specific charge-but the reverse of this would not be true, i. e., a finding of "not guilty" of "conduct to the prejudice etc.," but "guilty " of some specific article. A court could never find a person guilty of an offense that entailed a punishment greater than the one upon which he is charged. Courts cannot resort to the general article to evade other articles of war. If the offense is proved under the specific article it must so find. Courts have sometimes done this where the accused is charged under an article for which the punishment is mandatory, and which they believe too severe for the case. Such action is wholly illegal and to be reprobated in the strongest terms. The court is assembled for finding out the facts, and, by their oaths, they agree to find according to the facts proved. If they believe a mandatory punishment too severe, they have a way open to them by recommending the accused to the clemency of the reviewing authority. Animadversions. The court has a right, and it is often proper that it should animadvert upon the conduct of the accuser, prosecutor, or other persons. The question having been raised of the authority of a general courtmartial, by proper animadversions, to bring to the notice of the military commander to whom the proceedings are sent, any conduct of the prosecutor or other military person which may be developed before the court in the due course of trial, the General-in-Chief thought it proper to affirm such right in clear cases, as one well settled by the practice of armies, and that its judicious exercise tends to promote justice and discipline.' In the English service, where the power of summary dismissal resides in the Crown, it has often happened that such animadversions of courts-martial have been followed by summary dismissal. In our service such action of courts-martial might be followed by bringing the party animadverted upon to trial. Animadversions on Charges. Simmons cites a number of instances, where courts-martial have declared charges "frivolous, vexatious and groundless," "malicious," "not originating in a desire to promote the good of the service," "proceeding from warmth of temper and ignorance, insubordination, animosity, resentment, revenge or conspiracy;" and other cases, where courts have declared, in their opinion, that the prosecutor was actuated "by no illiberal or improper motive," or, "by a sense of duty and regard for the benefit of the service," or that his conduct was "regular and impartial," or "laudable and honorable." Such remarks, he says, have generally been produced by strong assertions or insinuations of the prisoner, not supported by 1 G. O. 3, A. G. O. Jan. 27, 1873. |