CHAPTER XIV ARRAIGNMENT-PLEAS 177. The challenges having been disposed of and a quorum remaining, the accused is then arraigned. The arraignment consists in the judge-advocate's reading to the accused, both standing, the charges and specifications on which he is to be tried and receiving his plea thereto. A plea is a formal answer made by the accused to the charge against him. Pleas may be divided into: I. Pleas to the jurisdiction. II. Pleas in abatement. III. Pleas in bar of trial. IV. Pleas to the general issue. These pleas should be made in the order named. 178. I. Plea to the Jurisdiction. This plea, if sustained, denies the jurisdiction of the court in that case; and if not sustained and trial proceeds, the proceedings of the courtmartial, if duly approved, may be reviewed by the civil courts, and if the decision is against the jurisdiction of the court-martial its judgment will be set aside. 179. Pleas to the jurisdiction involve questions of the legal authority of the court; such as: a. That it was convened by an officer having no legal authority to convene it.1 b. That its composition is illegal, being composed wholly 'Articles 72 and 73. See ante, par. 34 and 41. or in part of members not authorized by law to sit upon such court-martial.1 c. That the accused is not subject to its jurisdiction.2 d. That the offense is not against military law and not, therefore, subject to trial by court-martial.3 The sustaining of any one of these pleas made at this time to the jurisdiction inevitably stops proceedings in the case; and, if not sustained, and afterward facts which justify the plea are found, in a review of the proceedings by a civil court, to exist, it will cause the judgment and sentence of the court to be set aside as illegal and void, even if the accused waives the question of jurisdiction. Waiver of objection will never avail to confer jurisdiction upon a court not legally possessing it. 180. II. Pleas in Abatement (also called Dilatory Pleas). -A plea in abatement is based upon some defect in the indictment, or charge, and is one that goes to abate the plaintiff's action, that is, to suspend or put it off for the present, but not finally.4 It is a rule, upon all pleas in abatement, that he who takes advantage of a flaw must, at the same time, show how it may be amended.5 This plea defeats the action, if sustained, for the time being, but the right of the action itself is not gone and the plaintiff may proceed with it after the defect is removed, or may re-commence it.6 181. Such pleas, therefore, serve only to delay the trial until the correction may be made, and for that reason are also called "dilatory" pleas. They may be made where there is a misnomer, the accused being charged under a wrong name, or described by a false or improper addition 1 See Composition of Courts-martial, ante, Chapter V. 2 See Jurisdiction, ante, par. 52 et seq. 3 Id. Bishop, Cr. Proc., Vol. 1, Sec. 738-740; 3 Blackstone's Comm., p. 301. 4 Blackstone's Comm., p. 335. Stephen on Pleading, 49. thereto. In such case the accused is bound to state his proper name, and to point out the correct changes to be made. But where the plea covers simple matter like a change in the middle name or initial letter, the court may order the change made and proceed with the trial without delay in the proceedings.2 182. If the accused makes no objection to the name or designation under which he is charged and pleads guilty, or not guilty, to a specification in which he is incorrectly named or described, such plea will be regarded as an admission by the accused of his identity with the person designated, and he cannot thereafter object to the pleading on account of misnomer or misdescription, but he may be tried and punished, even though they be erroneous; 3 and a failure, at the arraignment, to take notice of a variance between the form of the specification to which the accused is called upon to plead and such specification as it appeared in the copy of the charges served at his arrest, is a waiver of the objection, and the same cannot be taken advantage of at a subsequent stage of the proceedings.4 183. Where the accused has not been furnished with a copy of the charges preferred against him, or where the copy furnished is materially different from the one upon which he is arraigned, a continuance may justly be asked for under the provisions of the 93d Article of War. Where there is a material difference between the copy of the charges and specifications furnished the accused and that upon which he is arraigned, he may take advantage of it by a plea in abatement.5 184. There is no special form for making the plea; it 1 Bishop, Cr. Proc., Vol. 1, Sec. 739, 740; 4 Blackstone's Comm., p. 335. 2 Davis' Military Law, p. 108. Ives' Military Law, p. 102; Davis' Military Law, p. 110; Dig. Op. J. A. G. 1995. Dig. Op. J. A. G. 732. 'Davis' Military Law, p. 108. may be written or oral. The burden of proof of sustaining it lies with the accused, and he may introduce evidence, as well as argument, to support it. The prosecution may bring rebutting evidence and is entitled to a reply, all of which is entered on the record.1 185. III. Pleas in Bar of Trial.-A plea in bar of trial, if sustained, is a substantial and conclusive answer to the action begun, and the accused must be discharged from trial. Such pleas may be made on the ground of: 1st. The Statute of Limitations. 2d. A former acquittal or conviction. 3d. Pardon. This statute 186. 1st. The Statute of Limitations. affecting persons under military jurisdiction is contained in the 103d Article of War, as follows: Article 103.-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 of some other manifest impediment, he shall not have been amenable to justice within that period. (Original Article 103.) No person shall be tried or punished by a court-martial for desertion in time of peace and not in the face of an enemy, committed more than two years before the arraignment of such person for such offense, unless he shall meanwhile have absented himself from the United States, in which case the time of his absence shall be excluded in computing the period of the limitation: Provided, That said limitation shall not begin until the end of the term for which said person was mustered into the service. (Amendment added to original Article 103. Act April 11, 1890.) 2 1 Benét, 6th Ed., p..123. 187. The provisions of this article, while applicable to other offenses against military law, do not extend to the offense of desertion "in time of war," and cannot, therefore, be successfully pleaded in that case. And the judgment of a legally organized court-martial convicting and sentencing a soldier for desertion, duly approved and confirmed by the proper reviewing authority, is not subject to review by a civil court, in habeas corpus proceedings, on the ground that the prosecution is barred by limitation under this article, such defense being one to the merits, to be determined by the court-martial, and not affecting the jurisdiction. The plea is a matter of defense; a statute of limitations cannot be taken advantage of by demurrer.3 188. The General Statute. The first part of the article quoted above constitutes the general statute of limitations in force at the time of, and prior to, the adoption of the latter part by the Act of April 11, 1890, which refers only to "desertion in time of peace" and not in the face of the enemy. The general statute, though modified by the additional provision as to "desertion in time of peace and not in the face of an enemy," still applies to offenses under military law except "desertion in time of war." Its period of limitation begins to run from the date of the commission of the offense and runs for two years thereafter. The offense must have been committed within "two years before the issuing of the order for trial, unless, by reason of having absented himself, or of some other manifest impediment," the accused has not been amenable to justice within that period; and it has been held that "the order for trial" within the meaning of this Article is the "refer1 Cir. 18, War Dept., 1905; Cir. 29, War Dept., 1906; Ex parte Townsend, 133 Fed. Rep. 76. See Ex parte Townsend, 133 Fed. Rep. 74; In re Zimmerman, 30 Fed. Rep. 176; In re Davison, 21 Fed. Rep. 618; In re White, 17 Fed. Rep. 723. U. S. v. Cook, 17 Wall. (84 U. S.) 168. |