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the presentation of such application for trial, or if such court, being convened, does not award dismissal or death as the punishment of such officer, the order of dismissal of the President shall be void." The President cannot dismiss an officer in time of peace.” Fourth. Where an officer procures his resignation or muster out on false representations. In this case his discharge may be revoked, and he brought to trial for offenses committed before such discharge. It is a principle of law that fraud vitiates any contract, and that no party is bound by an engagement or obligation into which he has been induced to enter through the fraud or false representation of another. The burden of proof would rest upon the government to show that the discharge was procured through fraud. If, however, the discharge was not fraudulently procured, it cannot be revoked against the will of the party. Having once duly left the service he cannot be caused to enter it without his consent.” Fifth. Where any person in the military service commits any of the offenses named in the 60th Article of War. The statute of limitations applies, however, to offenses under this article." Sixth. Where a soldier is a deserter. Every soldier who deserts the service of the United States shall be tried by a court-martial and punished, although the term of his enlistment may have elapsed previous to his being apprehended and tried."
$ 1230 Revised Statutes. * S 1229 Revised Statutes. * Opinions J. A. G., p. 240. * XIV. Opinions Attorney-General, June 12, 1872. * Art. 48.
In the case of an officer dropped for desertion, under the provisions of section 1229 Revised Statutes, and afterwards recaptured, he cannot be tried by a courtmartial.". * G. C. M. O. 16; A. G. O., Aug. 30, 1871.
CHAPTER IV. SPECIAL JURISDICTION OF COURTS MARTIAL.
WE come now to the special jurisdiction of the different courts-martial, and the limitations upon their jurisdiction. The decision as to which of these courts will have jurisdiction in any case will depend upon the rank of the accused, the nature of the offense, and the punishment that may be inflicted; and, as between regimental, garrison and field officer's courts, whether the offense was committed in time of peace or war. The only court capable of trying all classes of military offenders and offenses is the general court-martial; and it may try the greatest or the smallest offenses. Offenses exclusively Cognizable by a General Court. There are certain offenses exclusively cognizable by a general court-martial, and these are:— First. Those which officers may commit under the rules and articles of war. Article 79 provides that officers shall be tried only by general court-martial; and no officer shall, when it can be avoided, be tried by officers inferior to him in rank. Whether the trial of an officer by officers of an inferior rank can be avoided or not is a question, not for the accused or court, but for the officer convening the court, and his decision upon this point, as upon that of the number of members that can be detailed, is conclusive." From the analogy of the two cases it would seem necessary to state, in an order convening a court composed of officers inferior in rank to the accused, that such detail could not be avoided." Second. Those which may be punished capitally, depending upon the nature and degree of the offense. The 83d Article provides that regimental and garrison courts-martial, and field officers detailed to try offenders, shall not have power to try capital cases. General courts-martial, also, can only try such capital cases as are enumerated in the articles of war.” Third. Those against which penalties are denounced greater than a minor court can inflict. The question of jurisdiction of the minor courts depends upon the punishment, and not upon the offense. If they have jurisdiction of the person, and can award a proper punishment, they have jurisdiction of the offense. The minor courts are forbidden to inflict a fine over one month's pay, or to imprison or put to hard labor any non-commissioned officer or soldier for a longer time than one month.” It often happens that an offense is triable by a general court, or one of the minor courts. “Absence without leave,” for instance, if for a short period, would properly be tried by one of the minor courts; if aggravated, by a general court. No definite rule can be laid down to determine before which court such cases should be brought. A discretion must be exercised by the convening authority, and whenever an adequate punishment could not be awarded the accused, if he is found guilty, by one of the minor courts, it should be sent before a general courtmartial. The nature of the offense and the circumstances of each particular case must determine. If one of the minor courts deems that it has no jurisdiction, on account of inability to award sufficient punishment, it should suspend its proceedings and report the fact to the convening authority. If this officer, however, differs with them and remands the case for trial, the court cannot refuse to try it. The opinion of a court of inquiry upon this point in 1868, approved and published by the Secretary of War, is here given : “In the opinion of the court, the only ground upon which a garrison court-martial could refuse to try a case, presented to it for trial by the commanding officer of a post, would be the illegality of the order convening the court. By the articles of war it would not have been illegal for the court to have tried the accused under the charges presented by General K. It is simply a matter of discipline, and the responsibility of the commanding officer for this discipline is certainly greater than that of his subordinates. The court are of the opinion that the conduct of Brevet Major B., and Brevet Captain P., in persisting in their refusal to try the case presented to them by the commanding officer, General K., was very reprehensible.” Jurisdiction of Regimental Courts. This court is limited in its jurisdiction to offenses committed by soldiers in a regiment or corps. In one case this court has exclusive jurisdiction. Article 30 provides that any soldier who thinks himself wronged by any officer may complain to the commanding officer of his regiment, who shall summon a regimental court-martial for the doing of justice to the complainant. This article was adopted from the British, and was intended to afford to enlisted men a quick mode of redress. Though a court for doing justice, it partakes largely of the character of a “court of inquiry,” for it is limited to determining
1 Wooley vs. U. S. 20 Law Reports, 621.