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cient cause; that Dr. Stone struck Lieut. Schroeder while he was looking in the opposite direction, and not prepared for an assault, and this in the view of ladies, citizens, and soldiers. Conduct like this would be considered highly reprehensible if committed by any one in civil life; and the Department does not consider that either the character or the interests of the army would be promoted by lowering the standard of propriety in the service, and converting conduct improper in itself—whether committed by an officer or by anyone else-into a mere breach of military discipline.

“ The court may possibly have considered, that the punishment prescribed by the 83d' Article, was disproportioned to the offense committed by Dr. Stone, but that question was not submitted to them. The law in this case affixes the punishment, and it is the province of the reviewing power, and not that of the court, to mitigate it according to circumstances.” 2

In 1856, Lieutenant Smith was tried for conduct unbecoming an officer and a gentleman.” The court found him“ not guilty” of the charge, but "guilty” of conduct unbecoming an officer, and to the prejudice of good order and military discipline.”

In commenting on this case the Secretary of War held that,—“There is no such offense known to the articles as

conduct unbecoming an officer.' The unbecoming conduct of a commissioned officer of which the law takes notice, and authorizes a court-martial to take cognizance, is conduct unbecoming an officer and a gentleman.' There is no minor indecorum, no unbecoming conduct, not unbecoming an officer and a gentleman, that the law submits to the jurisdiction of a court-martial, and the court in pronouncing the conduct of Lieutenant Smith 'not unbecoming an : Present 61st.

? G. O. 41, A. G. O., Dec. 11, 1852.

officer and a gentleman,' acquitted him of the legal charge before them. At the same time they give judgment under the 99th’ Article of War. He was not charged with any offense under that article. If charges are drawn up so as to bring them expressly and exclusively under particular articles of war, a court-martial cannot convict under other articles. The sentence of the court-martial in this case is therefore void.''?

The latter part of this decision has been overruled, and it is proper now to find a person, charged under a specific article, where the evidence does not prove an offense under that article, “not guilty,” but “guilty” of “ conduct to the prejudice, etc.

Conduct Prejudicial to Good Order and Military Discipline. Article 62. In 1869 the question was raised, “Does a specification alleging that a soldier filled up a blank check on the assistant treasurer of the United States, signed thereto the name of a paymaster of the army, and negotiated or used the same as money, charge a military offense of which a general court-martial can take cognizance ?" The Judge-Advocate General held the offense one properly charged under the 99th Article, inasmuch as, in the forging of the name of an army officer, his military superior, and in availing himself of the forged signature in the manner set forth, the soldier was guilty of a criminal act, necessarily prejudicial to good order and military discipline.

Under this article all offenses not capital are cognizable by courts-martial, provided they affect the good order or discipline of the service. But where a crime, not specially brought within the jurisdiction of a military court by some other article of war or other statute, does

1 Present 62d.
3 Present 62d.

? G. 0. 8, A. G. O., July 23, 1856.
• Bureau of Mil. Justice, Oct. 23, 1869.


not affect, or prejudice, military order or discipline, it can be taken cognizance of, in time of peace, only by the State or local criminal courts.

It is not absolutely necessary that the words “ to the prejudice of good order and military discipline " be added, to make an offense cognizable by courts-martial. If the offense, as derived from the charge and specification, is contrary to good order and military discipline, the court will have jurisdiction whether the words are added or not. The Judge-Advocate General so held in the case of a soldier charged with “assault with intent to kill,” the specification alleging that the offense was committed by a fellow soldier.?


Opinions J. A. G., p. 44.

• Bureau of Mil. Justice, April 8, 1869.



Courts of Inquiry are courts established by law for the purpose of examining into the nature of any transaction of, or accusation or imputation against, any officer or soldier of the army.

Constitution. They may only be ordered in one of two ways :

1st. By the President at his option, or on demand.

2d. By a commanding officer upon application of the party desiring the court.

The 115th Article provides that as courts of inquiry may be perverted to dishonorable purposes, and may be employed in the hands of weak and envious commandants, as engines for the destruction of military merit, they shall never be ordered by any commanding officer, except upon a demand by the officer or soldier whose conduct is to be inquired into. The term "commanding officer,” as used in this connection, is interpreted to mean such superior officer as might properly convene a court-martial for the trial of the accused.'

The question arising in 1874, as to the right of a regimental commander to convene a court of inquiry, the Judge-Advocate General held, that if the charges to be inquired into are beyond the jurisdiction of a regimental court, then it is believed that the regimental

Opinions J. A. G., p. 42.



commander would not be the proper commanding officer to order the court of inquiry, and this whether the party demanding the court be a commissioned officer or enlisted

It is the offense charged which should give the jurisdiction, and not the status of the party in the service.

Composition. A court of inquiry consists of one or more officers, not exceeding three, and a recorder? thereof.

As in the minor courts-martial, the presence of all the members for purposes of business is necessary.

The recorder is not a member; his position and duties correspond closely to those of a judge-advocate of a general court-martial.

A new member may be appointed and take his seat after the court has been in session; 8 but previous testimony should be read over to him.

The accused is permitted to be present, and should be allowed counsel, but the court would have the same right to object to an improper person as on a court-martial.

The law authorizes the appointment of a reporter, who shall record the proceedings of, and testimony taken before such court, and may set down the same in the first instance in short hand. Before entering upon

Before entering upon his duty he is to be sworn (or affirmed) faithfully to perform the

The rule as to appointment prescribed for courtsmartial governs all military courts.

Courts of inquiry, and the recorders thereof, have the same power to summon and examine witnesses as is given to courts-martial and the judge-advocates thereof."

The recorder was in 1863, given power to issue like


1 Letter A. G. O., Sept. 22, 1874.

? The term “Judge-advocate” is substituted for the term “Recorder" in the new Articles recently proposed.

8 Howard Court of Inquiry. 4 Article, 118. 5 Sec 25, March 3, 1863.

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