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without being apprised of the circumstances, to decide upon the merits of a case which has not been fully and correctly submitted to him. For the judge-advocate, however, it must be a matter of perfect indifference whether his opinions are inserted on the face of the proceedings or not, because he has always the means of bringing them to the notice of the approving officer; and thus, in excluding them, a court-martial would merely deprive itself of the opportunity of explaining its reasons for having acted contrary to the judge-advocate's advice.” 1

Right of Court to Judge-Advocate's Opinion. The court, without doubt, has a right to the judge-advocate's opinion upon any point of law, and, when called upon, he should give it. The value of such opinion, however, will depend upon the particular person acting in that capacity. It frequently happens in our service that the judge-advocate has not the experience or knowledge of court-martial proceedings which most of the members possess; his opinion therefore would be of little value to them.

Responsibility for Opinion. There has been a diversity of opinion among English writers, as to the responsibility of the judge-advocate to a civil court for opinions given by him to a court-martial. Whatever may be the responsibility in English courts-martial, where this officer is, as before stated, generally a civil lawyer, such responsibility does not obtain in this country-nor should it. Few officers add to their other military knowledge an extensive knowledge of military and criminal law, and to make them responsible in damages for an erroneous opinion would be an absurdity.

During the deliberations on the finding and sentence the duties of the judge-advocate are of an especially important nature.

The court may labor under erroneous 1 Hughes' Duties of Judge-Advocates, p. 123.

ideas as to the evidence, or may proceed to an illegal or irregular finding; it might by oversight give a discretionary punishment where the law is mandatory, or sentence to capital punishment where less than two-thirds had voted guilty. In cases of that kind it is the duty of the judgeadvocate to call the fact to the notice of the court. He should, however, abstain from any remark by which his opinion as to the guilt or innocence of the accused may be ascertained.

How far under the Orders of the Court. The judgeadvocate is in some cases under the orders of the court, and in some cases not. In his character as prosecutor he cannot be interfered with. He is not under their control as to the manner of conducting the trial. He may examine such witnesses as he deems necessary, and no others; or refuse to call any witnesses for the prosecution; he may call his witnesses in the order he desires. .

The court may order him to summon witnesses, but it cannot compel him to examine them.

It cannot interfere with his right of an opening and closing address, or his right of argument, upon points arising during the trial, where the interests of the prosecution are involved.

In his character as recorder, he is under the orders of court, and yet, for a refusal to obey such orders the court cannot punish him, nor could it place him in arrest. Its proper course is to note any insubordination on his part, and report it to the reviewing officer.

Responsibility. The judge-advocate, as the prosecutor for the government, is responsible for his manner of conducting the trial, and, for failure to perform his functions properly, is liable to the censure of the reviewing officer, and even to trial for willful wrong doing.

Witness. The judge-advocate may be a witness,

although it is deemed the better practice not to detail a person as judge-advocate who may be called on to testify. Where he does testify, however, the President of the court should administer the oath, and the testimony be recorded by the clerk or a member, or he may record it himself.

It is at all times competent for the officer convening a court-martial to relieve the judge-advocate first detailed, and to substitute another in his place. This course, however, when resorted to pending a trial, tends to embarrass the prosecution, and should not be pursued except in extreme cases,

Recorders of courts-martial have duties corresponding to those here given for judge-advocates.

1 Opinions J. A. G.,

p. 207.

CHAPTER XVIII.

CONSTRUCTION OF ARTICLES OF WAR.

1

False Returns. Article 8 provides for the case of an officer knowingly making a false return to the Department of War, or to any of his superior officers authorized to call for such returns, of the state of the regiment, troop or company, or garrison under his command, or of the arms, ammunition, clothing, or other stores belonging thereto.

Where an officer was charged with making a false return of company funds, and found guilty under this article, held, that the article did not apply to return of funds.

False returns, made by a commissary or quartermaster, are not offenses cognizable under this article.”

False Certificates. Art. 13 relates to the signing of false certificates relating to the absence or pay of an officer or soldier.

An officer in 1859 was charged with “ conduct unbecoming an officer and a gentleman,” and convicted of signing a false certificate of transportation,” but acquitted of signing the same “ knowingly.The court found him not guilty of “conduct unbecoming, etc.,” but guilty of “conduct to the prejudice of good order and military discipline.” The War Department held the finding entitled to an acquittal, and is in legal effect an acquittal and therefore avoids and omits the sentence. “It is not necessary in military charges,” it was held, “ to allege that the acts were done . maliciously,' or wilfully,' or 'knowingly.' A specification of fact is good without such expressions, but if they are alleged and negatived by the court in their verdict, then the inference from the fact fails, and the accused, being acquitted of intention, is acquitted of the offense. That is certainly the legal effect and meaning of such finding

1 G. C. M. 0. 36, A. G. O., April 11, 1877.

'G. C. M. O. 12, A. G. O., May 17, 1872. G. C. M. 0. 19, A. G. O., July 24, 1872. G. C. M. O. 47, A. G. O., Aug. 22, 1870.

“What other meaning was in the minds of the court ? They find that the accused did not knowingly’sign, meaning, probably, that he did not know that the certificate was false. Then did he sign it in good faith, to the best of his knowledge and belief? or in such ignorance and disregard of what he certified as made the certificate an act of bad faith? In that finding of the specification it sustains the charge. But the court negative the charge, and therefore reject that sense of the specification. The court probably find only a due want of care and accuracy a neglect of duty.” 1

In 1869 the Secretary of War in a general order stated that “ the practice of drawing pay twice for the same time and refunding at some subsequent period has lately been of such frequent recurrence, and is perpetrated under such circumstances, as to preclude the supposition of inadvertence or mistake, but rather of deliberate intention. Every officer's pay account contains the certificate that the officer has not already received pay for the same period. If, therefore, an officer signs two sets of pay accounts for the same month, one set must be false, and if the name and facts reach the Headquarters of the Army, as they surely will through the Paymaster-General, the officer will be tried by a general court-martial under the 14th (present 13th) Article of War.” 2

1 G. 0. 28, A. G. 0. Dec. 31, 1859.

? G. 0. 61, A. G. O., Aug. 7, 1869.

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