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or both combined. This being agreed upon, the amount can more easily be settled.

If the members of the court are unable to agree upon a sentence, which would rarely ever happen, all that can be done is for the reviewing officer to adopt the same course as prescribed in failure to agree upon a finding.

Changing Sentence. Courts-martial, at any time during their sitting, may reconsider any judgment or sentence rendered by them, and alter it as seems to them proper.

This was first illustrated in our service in the case of Peter Williamson, a soldier tried for desertion. He was sentenced "to confinement at hard labor with ball and chain." On the ensuing day, at the suggestion of a member, the said sentence was reconsidered and the court substituted the following "that the said Peter Williamson be shot to death.” The question of the power of the court to so act was referred to Attorney General Wirt who said,—“ In courts of civil jurisdiction when sitting even in criminal cases, the court is not concluded by an opinion which they may have expressed in any one day of its session, the whole subject being completely within its control until the end of the term, and I am not apprised of any difference in the powers of the two courts over the subjects which severally belong to them during the continuance of their respective terms.

“ If a civil court of criminal jurisdiction, therefore, may lawfully reconsider and alter during the term, any opinion which it may have pronounced on a previous day of the same term; so, in like manner, I conceive may a court-martial * * * A general court-martial convened for general purposes, continues à court with full powers while it has any business to do, of which it alone is the judge ; and while it so continues a court, its power of judicial deliberation and decision over all the subjects


may have been brought before it is as full on the last day of its sittings as on any preceding day. I am of the opinion that the court had the power to alter the opinion they had expressed on the preceding day, and that their final opinion is regularly and legally pronounced.

The question again came up in 1844, but was complicated, as it involved the right of a mutilated court to change a former judgment or sentence. A General Order from the War Department published the following decision :

“ However it may be asserted that the usage and laws of courts-martial may sanction the right of the court to amend and entirely change their positive decision at any time before their final adjournment, yet it is a right that should be cautiously exercised, and only on obvious and extraordinary occasions. In the present instance, a full court acquitted the prisoner, and upon the next day at mutilated court, one member being absent, undertake to rescind the judgment of the previous day, and to pronounce the accused guilty and sentence him to punishment. To justify such reversal, the court should be as full and constituted precisely as it was, when the first judgment was pronounced. In consequence of this irregularity, the proceedings of the court are disapproved.” 2

If, however, a mutilated court, on revision, can alter its sentence as is now held to be the case, there is no reason why such alteration should not be made during the original proceedings.>

It frequently happens that there are circumstances connected with a case which lead courts to award a milder punishment than they ordinarily would for similar offenses. Thus age, inexperience, length of service, aggravating

· I. Opinions Att'y Gen'), Aug. 29, 1819. ? G. 0. 40, A. G. 0. Oct. 14, 1844. 3 See Chapter XIV. page. 192.

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causes, etc., may be reasons for such action. In these cases it is well for the court to add something to indicate its reasons for so doing. Without it, their action may appear inconsistent to the reviewing authority and have a bad effect upon the discipline of the service. The following form is frequently used : “ The court is thus lenient on account of the previous good character of the accused as shown in evidence.” Any reason, of course, may be assigned.

Some doubt has arisen as to whether a court in awarding a sentence could take into consideration previous confinement, or whether this was purely a matter for the reviewing authority. On this point, the Secretary of War in 1874 said,—“ It appears in evidence that the prisoner was in confinement some time before his trial; but the court, having the power to fix the sentence, could take this into consideration, and adjust the punishment accordingly.”

Recommendations to Clemency. As it may often happen, especially in mandatory sentences, that the punishment for the particular case tried is greater than the members deem appropriate, recommendations to clemency are made by all or part of the members, setting forth reasons to induce leniency on the part of the reviewing authority. It is well settled that such recommendations are no part of the judicial proceedings or record of the court; it is merely the personal act of the parties siguing it. The recommendation should be signed by all the members making it, but they should be careful not to indicate to the reviewing authority the particular mode in which he should exercise his clemency.

Such recommendations should not be embodied in the proceedings, but attached to, or forwarded separately

1 G. C. M. 0. 02, A. G. O., Aug. 10.

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with them. Recommendations to mercy should be made with care.

Where six members of a court recommended an accused (found guilty of drawing money on fraudulent discharge final statement papers) to clemency on account of previous good character, the Secretary of War said, “ The officers recommending the accused to clemency are admonished as to the impropriety of such recommendations in favor of convicted forgers, which can only tend to lower the standard of honesty and trust-worthiness the military service, and bring courts-martial into low es



Forfeiture of Pay. In forfeiting a soldier's pay, courts-martial frequently except the just dues of the laundress. This is not necessary, as it has been held that so much of the pay of a soldier as is required to satisfy the certified claims of a laundress cannot be diverted from that object by sentence of a court-martial."

Sentences of forfeiture of pay cannot apply to the deposits” of an enlisted man under the act of 1872.

Meaning of Word Month. The word month as used in common parlance, and in ordinary business transactions, means a calendar and not a lunar month, and in the case of a sentence by court-martial it is to be so construed.

1 The members making recommendations to clemency are required to state on the record their reasons for such recommendations, in the Articles recently proposed.

· G. 0. 342, A. G. O., Oct. 19, 1863.
Regulations, 1 1329. • Opinions J. A. G., p. 344.





No sentence of a court-martial can be carried into execution until the proceedings shall have been approved by the officer ordering the court, or by the officer commanding for the time being.'

To this end the judge-advocate should forward the authenticated proceedings as expeditiously as possible to the officer having authority to confirm the sentence. Whether he will forward the proceedings of each case as soon as finished, or retain and forward all the cases tried at the end of the session, will depend upon circumstances. The latter is the ordinary custom, but, when there is a probability of a court sitting for several days, it is better to forward each case, thus doing as little injustice as possible.?

The reviewing authority must state his decisions and orders on the proceedings in each case. The orders and decisions should properly be written in the record at the end of the proceedings, and, though the case may require the action of a higher authority, these “orders, etc.,'

A mere reference or forwarding of the record in such cases is not expressive of any “decision” or “order” thereon, and does not fulfill the requirements of the law. He should formally act on it and note his

I Art. 104.

Proceedings should be forwarded with a letter of transmittal; the charges and papers connected therewith being enclosed.

3 Regulations, par. 896. * Opinions J. A. G., p. 318.

should appear.

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