be to the best interests of the service that the specification should simply state the character of the language used, provided always it be done in such terms as will sustain the charge, and distinguish the particular offense. It will then be for the court to determine whether the words proved to have been used, are of the character alleged in the specification. The customs of the service sanction this form of averment.1 Rank, Names, etc. The accused should be described by his rank and regiment, and, if a soldier by his battery, troop or company; his Christian and surname should be given, and if enlisted under an alias this should be added. The Judge-Advocate General held a specification fatally defective in which the rank of the accused, an officer, was not set forth, and in which it was not indicated that he had any rank whatever. Where an error is made as to name, rank, etc., this would not make the specification fatally defective, for the error may be corrected before the arraignment. If a party pleads under a wrong name or title he may be found guilty and punished, for he cannot take advantage of his own wrong. Dates should be set forth in words and figures, bearing in mind the meaning of the words instant, proximo and ultimo. If the offense is done in the night before midnight, the day before should be the date; if after, the day after. Intent. As intent often constitutes the gist of the offense, it should be set forth in the specification. Thus, where an act in itself indifferent, if done with a particular intent becomes a crime, the intent should be set forth. General Observations. Each specification should allege only the circumstances constituting one offense. 1 G. O. 32, Hdq'rs Mil. Div. Atlantic, Dec. 11, 1873. Facts of a perfectly distinct nature should not be included in the same specification. A specification must show that a person belongs to the army, or is amenable to military law; otherwise it would be defective. A specification must allege some offense, or it is invalid. Specifications under the charge of "desertion" should, in addition to the allegations of desertion and apprehension or surrender, give also the date of enlistment of the accused. Who may prefer Charges. In our service any officer may prefer charges against another, no matter what the rank of the parties may be, or against a soldier, or person amenable to military law. When preferred they must be sent through the proper channels to the authority competent to convene the court. Where, for instance, a subaltern prefers charges against a soldier, he should send them through the captain of his company. When, acting as adjutant or officer of the day, he confines a soldier and prefers charges, he should send them direct to the commanding officer of the post. An officer against whom charges have been preferred is under no disability to prefer charges. A superior may order a junior to prefer charges, and, even though the latter knows them to be false, it would still be an act of insubordination for him to refuse to comply. In subscribing such charges, it would be proper for the subordinate to add that it was done "by order of" his superior officer, since this would be a fact, and such fact would belong to the history of the case.1 Junior preferring Charges. The following remarks upon juniors preferring charges against superiors are well worthy of notice: 1 Opinions J. A. G., p. 284. "Any officer may, undoubtedly, protect himself against a wrong by his superior officer, by an appeal to a common superior. He may even, in conscientious discharge of a public duty, bring to the knowledge of the appropriate authority, any serious violation of duty, on the part of his superior, not affecting himself personally. In the latter case, however, as he voluntarily assumes the office of an accuser, he should be prepared to make good his accusation, or to meet the consequences. In either case he should be peculiarly guarded and circumspect in his language. He should studiously avoid all harshness of expression, everything which would indicate a desire to wound the feelings or injure the character of his superior. If he does this, however grave the charges may be, however calculated they may be in themselves to wound the feelings or affect the character of the person against whom they are preferred, they cannot properly be considered as evidence of the design to be disrespectful towards him. If it were otherwise, the more serious the offenses charged, the greater the impunity with which they might be committed. The only questions that can properly arise in such cases are: 1st. Would the facts charged, if true, constitute a military offense? 2d. Are they expressed in proper and becoming language? 3d. Were they preferred to the proper officer and through the proper channels." 1 Where a subordinate avails himself of this privilege of making complaints, or preferring charges, and, in so doing, uses contemptuous language against his superior, he may be tried and punished for it." A person may be tried for preferring false charges.3 1 G. O. 16, A. G. O., March 27, 1851. G. O. 1, A. G. O., January 11, 1856. 8 G. O. 9, A. G. O., April 1, 1853. fer charges. They may make complaints, or furnish facts, which shall be the ground for charges, but the charges themselves should be made and signed by a commissioned officer. Civilians, though not in the military service, can prefer charges. If such person submits formal charges they may be adopted, or new ones may be framed; it is only necessary that they be subscribed by a commissioned officer, and the judge-advocate may always formally authenticate them by his signature.1 Courts-Martial may prefer charges against an officer or soldier for using any menacing words, signs, or gestures in its presence, or disturbing its proceedings by any riot or disorder. It might also prefer charges for an act committed away from its presence, as, for example, against an officer, summoned as a witness, who should refuse to appear. The general custom for courts-martial in such cases is to report the fact to the convening authority. Additional Charges may be preferred at any time against an officer or soldier under charges. If preferred before arraignment, they may be tried along with the original charges; but, if after arraignment, they must be tried separately, or by a new court, as the oath of the members is" to try and determine according to evidence the matter now before them." The same remarks apply to amendments to charges. What Charges may be Tried. While it is certainly most desirable and proper that charges, especially when of a grave character, should be forwarded in the first instance to the authority who has convened, or is to convene the court-martial; yet, if charges are, by the officer preferring them, presented directly to the court, through the judge-advocate, and the court proceed to the trial of 1 Opinions J. A. G., p. 82. the same, such action would not affect the validity of its findings and sentence thereon; and, even if not indorsed at all, or in any manner formally referred to the court or judge-advocate for trial, it will be sufficient if the prisoner is actually brought before the court for trial, and the charges appear authenticated by the signature of some responsible officer.1 The order convening a court sometimes reads: "A general court-martial is hereby appointed for the trial of such persons as may be brought before it by authority from these headquarters"; when it so reads, only such charges as are referred to the court for trial by the convening authority can be tried by it. Charges of "Habitual Drunkenness" and "Utter Worthlessness," sustained by specifications of offenses which have already been punished by sentence of courtmartial, are deemed unauthorized by law; but at the same time, it is necessary for the efficiency of the army that its ranks should be purged of men characterized by such charges. Cases of that kind may be tried under a charge of "Conduct to the prejudice of good order and military discipline," with separate specifications for each one of the acts of drunkenness which has not already been made the occasion of a trial by court-martial. It will rest with the court to judge from the evidence adduced whether dishonorable discharge would be the proper penalty for the misconduct alleged. When to be preferred. Charges should not be preferred unless there is strong reason to believe that an offense has been committed, and that it can be proved. Apropos to this the following General Order of May 7th, 1801, from the Horse Guards, is quoted: "To prefer ac 1 Opinions J. A. G., pp. 82 and 129. 9 G. O. 11, A. G. O., January 24, 1873 |