also, where a person had rendered service as an enlisted man, and as such been armed and clothed by the government, though he may not have been paid, he is estopped from denying the validity of his contract of enlistment upon the ground of any informality therein. Inasmuch as it is often difficult, especially in the field, to procure the best evidence of the contract of enlistment, the enlistment papers, it has been the practice to accept as sufficient presumptive proof thereof, such facts as show on the part of the accused an acquiescence in the status of a soldier, as the receipt of pay, the doing of military duty, etc.2 Where, under this plea, the question hinges upon some fault in the enlistment papers, the judge-advocate should produce them, and may afterwards introduce other evidence. Under this third head a person may plead that he is not a retainer to the camp, etc., within the meaning of the 63d article. "Pleas to jurisdiction" and "challenges to the array" are sometimes used interchangeably, and what would constitute a good challenge to the array is reserved as a plea to jurisdiction. The following appears to be the chief difference. A "challenge to the array" denies the legality of the court, not only to try the particular case in question, but all cases of a similar kind, and sometimes all cases of whatever nature. A "plea to jurisdiction," while acknowledging that the court is lawfully organized, denies its right to try this particular case. Special Pleas in bar of trial set forth a reason why the accused should not be called on to answer to the charge. The following pleas come under this head : (First.) Former Acquittal or Conviction. The articles 1 Opinions J. A. G., p. 156. 2 Opinion J. A. G., p. 167. of war direct,1 that no person shall be tried a second time for the same offense, but a question arises as to what constitutes such trial, as will make this plea valid. We will first discuss the cases which would not render this a valid plea. They are: (a) Where a court of inquiry had examined the charges and expressed an opinion. (b) Where the accused was tried by an illegally constituted court, or one which had no jurisdiction of his offense. For example, where a person was tried by a court convened by an officer having no authority to convene such court; or, where a person was tried by a minor court for an offense of which a general court alone had jurisdiction. (c) Where proceedings were commenced against an accused, but abandoned without formal acquittal or conviction or, where the trial had proceeded to a certain stage, and a nolle prosequi was entered. (d) Where the accused was arraigned upon one set of charges, and these charges were withdrawn, and others, somewhat different, were substituted, and the accused was then rearraigned upon the second set. (e) Where a court-martial was finally dissolved by the reviewing officer because unable to agree upon a finding. The case is regarded as analogous to that of a jury dissolved on account of hopeless disagreement. (f) Where the court was reduced below the minimum by the death, resignation, etc., of one of the officers, and the accused brought before a new court. (g) Where the accused pleaded a former acquittal or conviction, and it was not for the same identical offense. Captain Howe, having been acquitted by the civil courts, was rearraigned before the court-martial, which had suspended its proceedings, for the military part of his offense. He pleaded this acquittal by the civil courts, but it was held invalid, and he was tried, found guilty, and punished.1&2 The United States courts have decided that under the constitutional provision which declares that "no person shall be subject for the same offense to be twice put in jeopardy of life or limb," the jeopardy spoken of " can be interpreted to mean nothing short of the acquittal or conviction of the prisoner, and the judgment of the court thereon." 3 Applying this to courts-martial it may be said, that where a competent court-martial has formally come to a finding and sentence, and the proceedings are forwarded to the reviewing authority, this constitutes such a trial as was contemplated in Art. 102, and will be a valid plea of autrefois acquit or convict. That the reviewing authority deems the sentence inadequate, or disapproves the proceedings for any cause, except want of jurisdiction, will not render the trial a nullity. The plea of autrefois acquit, or convict, is the privilege of the accused which he may waive. If he does not choose to use it, courts will not take notice of it so as to bar a trial. It would be a good plea of former acquittal where a person tried for an offense, which included another, and acquitted, was arraigned for the lesser offense. Example. Having been found not guilty of "desertion," and afterwards arraigned for "absence without leave." " 1 Vide Chapter III. p. 39. 2 G. O. 25. A. G. O. May 22, 1840. 3 U. S. vs. Haskill, 4 Wash. C.C. R. 409. U. S. vs. Shoemaker, 2 McLean, 114. U. S. vs. Perez, 9 Wheaton, 579. Opinions J. A. G., p. 37, et seq. I. Opinion Attorney-General, Aug. 29, 1819. 4 Opinions J. A. G., p. 282. (Second.) Pardon. This constitutes a good plea in bar of trial. In the case of a general pardon the court would have to take notice of it without its being formally plead; but a special pardon should be brought to its notice in the pleading. In the case of a deserter returned to duty, by the authority competent to order his trial,' this would be a good ground for plea of pardon. Where such return to duty was not by this authority, this would not constitute a valid plea.2 A release from arrest cannot be regarded as a pardon. In 1819 Lieut. Gassaway plead a former arrest on the same charges and a discharge without trial, but the Attorney-General held that this was not a valid plea.3 A pardon to an officer by a post commander, for offenses which he has no power to pardon, is not a good plea.* The Supreme Court has decided that the power to pardon may be exercised at any time after the commission of the offense, even while legal proceedings are pending. A court-martial would be forced, therefore, to accept such plea, if valid, at any time during the trial. (Third.) Statute of Limitations. No person shall be liable to be tried and punished by a general court-martial for any offense which appears to have been committed more than two years before the issuing of the order for such trial, unless, by reason of having absented himself, or some other manifest impediment, he shall not have been amenable to justice within that period. It is difficult, sometimes, to determine when a party is Under par. 159, Regulations. 2 Opinions J. A. G., p. 139. I. Opinions Attorney-General, Aug. 29, 1819. 4G. C. M. O. 13, A. G. O., Aug. 3, 1871. Ex parte Garland, 4 Wallace, 334 et seq. 6 Art. 103. so amenable, after the expiration of two years.1 Captain Howe, among other pleas, plead the "statute of limitations." "The record of his case showed that the general courtmartial to try the charges was ordered on the 10th of April, 1840, within seven months after the offense had been committed; that when arraigned before the court the accused pleaded the pending proceedings against him, in the indictment in the civil tribunal; and that, therefore, he himself showed to the court-martial the impediment to the progress of that court. The record also exhibits the suspension of the proceedings in the military court, because of that impediment, and that the impediment was removed on the 20th of October, 1841; and that, by general orders of March 2d, 1842, the trial of Captain Howe was ordered to be proceeded in by the re-assembling of the court-martial on the 10th of May next, which was done accordingly. Thus the record shows that the prosecution was ordered in four months and four days after the offense was committed, and that it was actually proceeded in within less than six months after the impediment was removed, making less than eleven months of delay to prosecute the offense, when the time of the existing impediment, and cause of suspension of the proceedings instituted in the court-martial, is deducted from the time intervening between the commission of the offense on the 6th of of December, 1839, to the continuation of the proceedings of the court-martial assembled on May 10, 1842, according to the order of March 2, 1842." The court-martial decided that this plea was not valid, and its opinion was approved by the Attorney-General.* Though an accused might be willing to waive the privilege conceded in Art. 103, the court could not try 1 See discussion in Chapter III., p. 40, et seq. 3 VI. Opinions Attorney-General, p. 513. 2 Vide Chapter III. |