CHAPTER VI.

CHARGES AND SPECIFICATIONS.

A Military Charge is a clear, concise statement of an offense, with attendant circumstances. In our service it consists of two parts, viz.: the technical Charge, and the Specification. The former designates the offense in general terms; the latter the specific act, with the circumstances, including time and place, which go to make up the offense.

Taken together they correspond to an indictment by a grand jury in criminal prosecutions; the officer who convenes the court and orders the case for trial, finding the true bill of indictment.

Form for drawing up Charges. The manner of drawing up military charges has been established by custom, the general form of which will be found in the Appendix. There is, however, in the language of Attorney-General Cushing, "no one form of exclusive rigor and necessity in which to state military accusations." The same care is not needed in drawing up military charges as in civil indictments. According to the same authority "the most bald statement of the facts alleged as constituting the offense, provided the legal offense itself be distinctly and accurately described in such terms of precision as the rules of military jurisprudence require, will be tenable in

1 VII. Opinions Attorney-General, Dec. 1, 1855. I. Opinions AttorneyGeneral, Aug. 29, 1819.

court-martial proceedings; and will be adequate groundwork of conviction and sentence." The two principal essentials in a charge, including the specifications, are :— 1st. That it be laid under the proper article of war.

2d. That it contain averments sufficient substantially to distinguish and constitute the offense.1 The language of the law should be used when practicable, but the technical expressions used in civil indictments are not necessary.

Charge. Where an offense falls under a specific article it should be so charged, as such was the intent of the framers of the law.

It often happens that an act constitutes an offense against two or more articles. In this event the party preferring the charges must necessarily exercise a discretion; and, as the convening authority generally sees the charges before trial, any error of judgment may be corrected. He may, if he prefer, charge the offense under all the articles. This rule should, however, be borne in mind, that when an offense falls under an article for which a specific punishment is provided, it should be charged under that article. Thus, to charge "Drunkenness on duty" as "Conduct to the prejudice of good order and military discipline," would not be proper. It would give the court a discretion as to punishment where such discretion was not intended by the articles.

The 62d article, known in the English service2 as the "Devil's article," was added to embrace those crimes not cognizable under the other articles, but which constituted nevertheless offenses to the prejudice of good order and military discipline. It should never be resorted to, therefore, except when an offense is so "prejudicial, etc," and an appropriate article cannot be found under which to 1 Opinions J. A. G., p. 80. 2 Clode's Military and Martial Law, p. 31.

charge it. Charges are sometimes laid as violation of a specific article; for example, "Violation of the 39th article of war," or the same offense may be more properly charged as "Sleeping on post in violation of the 39th article of war." During the war much fault was found with the former way of laying charges.

In the case of Capt. E―, U. S. Vols., Gen. McClellan said: "The first charge is 'violation of the 42d1 Article of War.' As often happens, when this slovenly and reprehensible style of framing charges is adopted, the reporting officer or the judge-advocate has mistaken the article under which the act mentioned in the specification is punishable. Again, the office of the greater part of the articles of war is to ascertain and denounce the appropriate punishment to an offense. There is also this further objection, viz.: many of the Articles of War speak of several offenses. It is very seldom intended to impute all of these to a prisoner, and the attempt to do this in one charge would be a violation of the rule which requires each charge to be single." "Instead therefore, of charging upon an officer or private, a violation of any Article of War, the reporting officer should name the offense which is punished by the article, and proceed to specify, with the addition of time and place, the circumstances in which the offense consists.'

2

While in civil cases a person can only be tried for one offense at a time, not so with courts-martial; there may be a number of charges, or a number of specifications, each of which constitutes a distinct offense.

Specification. The specification should be explicit and at the same time concise. It is better to follow the terms used in the articles of war where the design is to

1 Code of 1806.

"G. O. 32, Army of the Potomac, Jan. 28, 1862. G. O. 11,A. G. O., Feb. 5, 1862, G. O. 39, Army of the Potomac, Feb. 4, 1862.

X

punish a prisoner under a specified article; but, where the word inebriation instead of drunkenness was used in a charge under the 38th article, the Attorney-General held that it was sufficiently clear to inform him of the military offense for which he was to be tried, and to enable him to his defense, which is all that is necessary in a case of this kind.1

prepare

The specification should set forth all the facts which go to make up an offense, with time, place, and circumstances. Averments as to time. Where the time is known it should be set forth exactly, but as it frequently is impossible to give it exactly, a latitude is allowed. To charge an offense as committed "on or about such a time" is considered sufficient.

There is no exact construction to be placed upon the words "on or about," as used in the allegation of time in a specification. The phrase cannot be said to cover any precise or particular number of days, or latitude of time. It is used, in military pleading, for the purpose of indicating to the accused some period, as nearly as can be ascertained and set forth, at or during which the offenses charged were committed, in cases where the exact day cannot be named.2

In the case of Colonel D, U. S. Vols., the first specification to the second charge averred that the accused was intoxicated at some time or times during the seventy days between August 20th and October 29th, 1862. This is not such notice of the time of the offense laid against the accused as enables him to defend himself against the charge. The specification should not therefore have been entertained by the court.3

1 I. Opinions Attorney-General, Aug. 29, 1819. VII. Ibid., Dec. 1, 1855.

Opinions J. A. G., p. 359. I. Opinions Attorney-General, Aug. 29, 1819.

G. O. 193, Army of the Potomac, Dec. 28, 1862. G. O. 4, A. G. O., Jan. 31, 1842.

Averments as to Place. The same rule as to the place applies where it cannot be set forth explicitly. To charge an offense as committed "at or near" such a place is sufficient. The Secretary of War ruled in 1865, that the want of averments as to time and place, if not excepted to by the accused, is not a fatal defect if they can be supplied from the testimony in the record.

Every circum

Averments as to Circumstances. stance which constitutes part of the offense should be set forth in the specification, thus showing to the judge-advocate on its face what he is called on to prove. There should be such a correspondence also between the charge and specification, that to have been guilty of one draws with it the necessary consequence that the accused is guilty of the other.1

The use of "abusive and indecent language," is regarded a sufficient averment without setting forth the language.2

Referring to this point the Commanding General of the Military Division of the Atlantic, in 1874 said: "The records of garrison and regimental courts-martial examined at these headquarters indicate the existence, to a considerable extent, of an impression that when certain language used by enlisted men constitutes the substance of the offense with which they are charged, it is always necessary that such language should be set forth verbatim in the specification to the charges. For the sake of certainty this is, as a general rule, desirable, but it is not in all cases indispensably requisite to a military charge. Instances occur of the use of such foul and immoral language, that its repetition in orders to the troops can have none other than a baneful influence. In such cases it is believed to

1 G. O. 39, Army of the Potomac, Feb. 4, 1862.

2 G. C. M. O. 3, A. G. O., 1872.