ideas as to the evidence, or may proceed to an illegal or irregular finding; it might by oversight give a discretionary punishment where the law is mandatory, or sentence to capital punishment where less than two-thirds had voted guilty. In cases of that kind it is the duty of the judgeadvocate to call the fact to the notice of the court. He should, however, abstain from any remark by which his opinion as to the guilt or innocence of the accused may be ascertained.

How far under the Orders of the Court. The judgeadvocate is in some cases under the orders of the court, and in some cases not. In his character as prosecutor he cannot be interfered with. He is not under their control as to the manner of conducting the trial. He may examine such witnesses as he deems necessary, and no others; or refuse to call any witnesses for the prosecution; he may call his witnesses in the order he desires.

The court may order him to summon witnesses, but it cannot compel him to examine them.

It cannot interfere with his right of an opening and closing address, or his right of argument, upon points arising during the trial, where the interests of the prosecution are involved.

In his character as recorder, he is under the orders of court, and yet, for a refusal to obey such orders the court cannot punish him, nor could it place him in arrest. Its proper course is to note any insubordination on his part, and report it to the reviewing officer.

Responsibility. The judge-advocate, as the prosecutor for the government, is responsible for his manner of conducting the trial, and, for failure to perform his functions properly, is liable to the censure of the reviewing officer, and even to trial for willful wrong doing.

Witness. The judge-advocate may be a witness,

although it is deemed the better practice not to detail a person as judge-advocate who may be called on to testify. Where he does testify, however, the President of the court should administer the oath, and the testimony be recorded by the clerk or a member, or he may record it himself.

It is at all times competent for the officer convening a court-martial to relieve the judge-advocate first detailed, and to substitute another in his place. This course, however, when resorted to pending a trial, tends to embarrass the prosecution, and should not be pursued except in extreme cases.1

Recorders of courts-martial have duties corresponding to those here given for judge-advocates.

1 Opinions J. A. G., p. 207.

CHAPTER XVIII.

CONSTRUCTION OF ARTICLES OF WAR.

False Returns. Article 8 provides for the case of an officer knowingly making a false return to the Department of War, or to any of his superior officers authorized to call for such returns, of the state of the regiment, troop or company, or garrison under his command, or of the arms, ammunition, clothing, or other stores belonging thereto.

Where an officer was charged with making a false return of company funds, and found guilty under this article, held, that the article did not apply to return of funds.1

False returns, made by a commissary or quartermaster, are not offenses cognizable under this article."

False Certificates. Art. 13 relates to the signing of false certificates relating to the absence or pay of an officer or soldier.

An officer in 1859 was charged with "conduct unbecoming an officer and a gentleman," and convicted of "signing a false certificate of transportation," but acquitted of signing the same "knowingly." The court found him not guilty of "conduct unbecoming, etc.," but guilty of conduct to the prejudice of good order and military discipline." The War Department held the finding entitled to an acquittal, and is in legal effect an acquittal and therefore avoids and omits the sentence. "It is not neces

66

1 G. C. M. O. 36, A. G. O., April 11, 1877.

2 G. C. M. O. 12, A. G. O., May 17, 1872. G. C. M. O. 19, A. G. O., July 24, 1872. G. C. M. O. 47, A. G. O., Aug. 22, 1870.

sary in military charges," it was held, "to allege that the acts were done maliciously,' or 'wilfully,' or 'knowingly.' A specification of fact is good without such expressions, but if they are alleged and negatived by the court in their verdict, then the inference from the fact fails, and the accused, being acquitted of intention, is acquitted of the offense. That is certainly the legal effect and meaning of such finding.

"What other meaning was in the minds of the court? They find that the accused did not knowingly' sign, meaning, probably, that he did not know that the certificate was false. Then did he sign it in good faith, to the best of his knowledge and belief? or in such ignorance and disregard of what he certified as made the certificate an act of bad faith? In that finding of the specification it sustains the charge. But the court negative the charge, and therefore reject that sense of the specification. The court probably find only a due want of care and accuracy a neglect of duty.'

991

*

In 1869 the Secretary of War in a general order stated that the practice of drawing pay twice for the same time and refunding at some subsequent period has lately been of such frequent recurrence, and is perpetrated under such circumstances, as to preclude the supposition of inadvertence or mistake, but rather of deliberate intention. Every officer's pay account contains the certificate that the officer has not already received pay for the same period. If, therefore, an officer signs two sets of pay accounts for the same month, one set must be false, and if the name and facts reach the Headquarters of the Army, as they surely will through the Paymaster-General, the officer will be tried by a general court-martial under the 14th (present 13th) Article of War."2

1 G. O. 28, A. G. O., Dec. 31, 1859. 2 G. O. 61, A. G. O., Aug. 7, 1869.

Accountability for Stores, etc. Article 15 directs that any officer who, willfully or through neglect, suffers to be lost, spoiled, or damaged, any military stores belonging to the United States, shall make good the loss or damage, and be dismissed from the service.

The loss or damage may be assessed by a Board of Survey with the approval of the commanding officer; 1 or it is presumed, by the court-martial trying him. The former would seem to be the better way.

In referring to losses occasioned by neglect of company commanders, the Secretary of War holds that the pecuniary responsibility cannot be transferred to enlisted men. It is the duty of the commander to attend personally to its (the property's) security, and either to himself superintend the issues, or cause it to be done by a commissioned officer. The plea that the keys of the rooms or chests, and the making of issues, were entrusted to enlisted men, or to civilians, without direct proof of vigilance on the part of the responsible officer, and a resort to every reasonable precaution, including frequent personal inspections, intended to prevent loss or damage, will not be accepted by Boards of Survey as relieving such officer from liability. Evidence must be demanded, showing clearly the circumstances of the loss and all the means and precautions taken to guard against it; and reviewing officers, in examining the proceedings of Boards of Survey, will apply the principles set forth in this order and be governed by them in affixing their approval. These remarks should be borne. in mind by courts-martial, in trying offenses under this article.

Losing Accoutrements. Article 17 provides that any soldier who sells or, through neglect, loses or spoils his horse, etc., shall suffer such stoppages, not exceeding

Under par. 1027 Regulations. 2 G. O. 66 A. G. O., June 24, 1874.