Page images

The Judge-Advocate General maintains that the President has no authority to order a new trial for the accused, except in a case of which he is the reviewing authority, without whose approval the sentence cannot be carried into effect; (as where the court was convened by his immediate authority, or where the execution of its sentence has been suspended for his action under the provisions of the 89th’ Article of War) and where the sentence on the ground of irregularity or error in the proceedings, or because the findings are not deemed to be sustained by the evidence, is formally disapproved by him. That a new trial can in no case be granted by the Executive where the proper reviewing military authority has duly confirmed and ordered the execution of the sentence of the court, the judgment of which is thus made final.?

I Present 111th.

* Opinions J. A. G., p. 246.



AFTER a sentence is confirmed by the proper officer it only remains to promulgate the proceedings and execute it. The graver sentences of courts-martial are executed with considerable ceremony, in order that the example may aid in deterring others from committing similar offenses.

The sentence of death is executed either by shooting with musketry, or by hanging.

Shooting. The following custom, taken from the English service, is observed where the criminal is to be put to death by shooting. An execution party, consisting of ten or twelve men, commanded by a sergeant, is usually ordered from the prisoner's regiment, and placed under the order of the provost marshal. The troops to witness the execution are drawn up on three sides of a square, in two lines, with an interval between the lines. The provost marshal heads the procession, followed by the band of the prisoner's regiment, drums muffled, playing the dead march; the execution party comes next; then four men, bearing on their shoulders the prisoner's coffin ; and immediately after follows the prisoner, usually attended by a chaplain,—the escort being in rear.

The procession passes down the front of the three faces of the square, the lines facing inward. cession's arriving at the flank of each regiment, the band

On the pro

of that regiment plays the funeral march, and continues until the procession has cleared its front. On arriving at the open face the music ceases; the prisoner is placed on the fatal spot marked by his coffin; the charge, finding, sentence, and order for his execution are read aloud to him; the chaplain, having engaged in prayer with the condemned, retires; the execution party forms at six or eight paces from the prisoner, and receives the word from the provost marshal.

When the firing party forms, the escort moves by the right flank and takes position in rear of that party, at ordered arms.

Should the fire not prove instantaneously fatal, it is the duty of the provost marshal, or of a file or two which have been reserved for duty, under the direction of the provost marshal, to complete the sentence. The execution being over, the troops break into column by the right and move past the corpse. .

Hanging. Less ceremony is observed in this case. The prisoner is brought on the ground by the provost marshal and escort. The troops to witness the execution are formed in a square, with the gallows as a centre. The charge, finding, sentence, and order of execution are read, and the executioner, under the direction of the provost marshal, performs his office. The execution being over, the troops march off the ground, the provost marshal with the escort remaining until the body is taken down.

If the sentence of the court in capital cases fixes the day or hour of its execution, and these happen to pass without the sentence being executed, the court should be reconvened, if not dissolved, and another day and hour appointed, or, what is better, the execution of the sentence ordered on a day or hour, and at a place to be designated by the commanding general. Nevertheless the time named not being properly a part of the sentence, but directory merely to the officer charged with its execution, if the direction is not from any cause complied with, it would seem that the general power which belongs to the proper commanding officer to enforce the sentence would remain, and that he could exercise it at will.

Where, however, the time is fixed by the general, and not by the court, and it passes without the sentence being executed, the case is simply one of an order not obeyed, and the right to renew and modify it at the pleasure of the commanding general is unquestionable.?

Commencement of Sentence. By direction of the Secretary of War, in cases where the sentence of a courtmartial involves confinement for a definite period, the confinement shall be considered as commencing at the date of the promulgation of the sentence in orders (if the person sentenced is in custody at that time) unless the time for its commencement is otherwise expressly fixed by the sentence of the court, or in the order promulgating the proceedings.?

A sentence to confinement, with or without forfeiture of pay, should not, in terms, be made to commence at a date prior to the confirmation of the proceedings of the court.

Under date of September 26, 1872, the Judge-Advocate General rendered the following opinion: “A sentence can only take effect from the date of its promulgation, and the power of the reviewing authority does not extend retroäctively, but only to action on a sentence as it appears of record, which, unless it provides for a forfeiture of antecedent pay in express terms, can only be held to affect a period subsequent to the date of its promulgation.”

It sometimes happens that considerable delay in the review and confirmation of a sentence of imprisonment

Opinions J. A. G., p. 349. ? G. 0. 21, A, G. O., Feb. 17, 1870.


takes place. This period cannot legally be credited to the prisoner on account of the term imposed by the sentence. If it is proper to take into consideration the length of confinement to which the prisoner has been subjected previous to such confirmation, it may be done by the mitigation of the sentence, so that its term from the date of approval shall not extend beyond the period contemplated by the court or by the reviewing officer.

Place. Courts-martial should not generally name the place of execution of a sentence, leaving this to the discretion of the reviewing officer. The place of confinement may have to be changed, and, if the place is fixed by the court, this cannot be done except by the President. The right of the Executive to transfer military prisoners from one place of confinement to another has never been questioned.

When a change of the place of confinement is made, the time occupied in effecting the change would be counted. If the sentence was solitary confinement on bread and water diet, the prescribed number of days according to the judgment of the court should be fulfilled.

If a soldier is sentenced to close confinement, and sickness requires his removal to the hospital, he may, on recovery, be returned to imprisonment. The time of his continuance in hospital should be counted as part of the time of his imprisonment.

Where a soldier, sentenced to be imprisoned for the balance of his term of service, escaped while under sentence, and was not apprehended till after his term had expired, the Judge-Advocate General held that he could not still be imprisoned under the sentence, the period of his punishment, which was limited by a certain event, which had happened, having expired.?

Dismissal. If no time is named in the order promul

· Opinions J. A. G. p. 348.

• Ibid, p. 350.

« PreviousContinue »