ten orders or communications. The authority to place officers and warrant officers in arrest or confinement will not be delegated. The term "commanding officer" shall be construed to refer to an officer commanding a post, camp, or station or other place where troops are on duty, and the officer commanding a body of troops who, under Article 10, has power to appoint a summary court-martial.

(2) Enlisted persons. By officers only, in person or through other persons subject to military law, or by oral or written orders or communications. The officer in command of any company or detachment may delegate to the noncommissioned officers thereof authority to place enlisted persons who are assigned or attached to his company or detachment, or are temporarily within its jurisdiction, e. g., in quarters or camp, in arrest or confinement as a means of restraint at the instant when restraint is necessary.

b. Authority of military police. (1) In the execution of their police duties, military police, and such persons as are designated pursuant to orders of an appropriate commanding officer to perform military police duties, are vested with such powers of arrest or confinement over persons subject to military law as are provided by army regulations. See AR 600355.

(2) The authority to arrest or confine persons not specifically mentioned herein is set forth in AR 600-355.

c. In quarrels, frays or disorders. All officers, warrant officers and noncommissioned officers have power to part and quell all quarrels, frays and disorders among persons subject to military law and to order officers who take part in the same into arrest and other persons subject to military law into arrest or confinement, as circumstances may require, until their proper superior officer is acquainted therewith (A. W. 68).

d. Authority of trial judge advocate to restrain. A trial judge advocate of a court-martial, as such, has no authority to place in arrest an officer or soldier about to be tried by the court. These are duties which devolve upon the convening authority or upon the post commander or other proper officer in whose custody or command the accused is at the time.

e. Authority of courts-martial to restrain. A court-martial has no control over the nature of the arrest or other

status of restraint of a prisoner except as regards his custody in its presence.

f. Responsibility for restraint after trial. Upon notification from a trial judge advocate of the result of trial (see 41b) a commanding officer will take prompt and appropriate action with respect to the restraint of the person tried. Such action, depending on the circumstances, may involve the immediate release of the person from any restraint, or the imposition of any necessary restraint pending final action on the case.

21. DURATION AND TERMINATION. Although charges should be preferred promptly (26; A. W. 70) the accused is not automatically released from restraint because of any delay in preferring the charges. He must remain in arrest or confinement until released by proper authority. The proper authority to release the accused from arrest is normally the officer who imposed the arrest. The proper authority to order release from confinement is the commanding officer to whose command the guardhouse or prison is subject. Once the prisoner is turned over to the guard, he passes beyond the control and power to release of the officer who initially ordered him confined, unless such officer is the commanding officer described above. The release of a prisoner without proper authority is a punishable offense (A. W.73). Undue delay in preferring or prosecuting charges should be investigated with a view to prompt disposition of the case or the release of the accused from arrest or confinement by competent authority when appropriate. In this connection see 26 and Article 70.

BY

22. ARREST OF DESERTERS CIVILIANS-Civil officers. Any civil officer having authority to arrest offenders under the laws of the United States, or of a State, Territory, District or possession of the United States may arrest summarily a deserter from the military service of the United States and deliver him to the military authorities of the United States (A. W. 106).

The right of the United States to arrest and bring to trial a deserter is paramount to any right of control over him by a parent on the ground of his minority. See 189.

23. ARREST OF DESERTERS BY CIVILIANS-Civilians generally. A private citizen has no authority as such, without the order or direction of a military officer, to arrest or detain a deserter

from the Army of the United States (Kurtz v. Moffitt, 115 U. S. 487); but sending out a description of a deserter with a request for his arrest and the offer of a reward for his apprehension and delivery, coupled with the provisions of law and regulations authorizing the payment of such reward, is sufficient authority for the arrest of a deserter by a private citizen.

The fact that the person who arrested and delivered a deserter was not authorized to do so is not a legal ground for the discharge of the deserter from military custody.

Chapter VI-Preparation of Charges DEFINITIONS-WHO MAY INITIATE; WHO MAY PREFER; ORDERING PREFERMENTWHEN PREFERRED-GENERAL RULES AND SUGGESTIONS-DRAFTING OF CHARGES— DRAFTING OF SPECIFICATIONS

24. DEFINITIONS. The formal written accusation in court-martial practice consists of two parts, the technical charge and the specification. For offenses in violation of the Articles of War, the charge merely indicates the article the accused is alleged to have violated, while the specification sets forth the specific facts and circumstances relied upon as constituting the violation. Each specification, together with the charge under which it is placed, constitutes a separate accusation. The term "charges" or "charges and specifications" is applied to the formal written accusation or accusations against the accused.

New and separate charges preferred after others have been preferred are known in military law as "additional charges". They may relate to transactions not known at the time or to offenses committed after the original charges were preferred. Charges of this character do not require a separate trial, and, subject to the completion of the preliminary procedure necessary for all charges, may be tried with the original

ones.

25. WHO MAY INITIATE; WHO MAY PREFER; ORDERING PREFERMENT. Charges are frequently initiated by some one bringing to the attention of the military authorities information concerning a supposed offense committed by a person subject to military law. Such information may, of course, be received from anyone, whether subject to military law or not.

Any person subject to military law may prefer charges, even though he be under charges, in arrest or in confinement. In the absence of personal knowledge, the accuser must make inquiry into the alleged offenses to avoid preferring charges which are either groundless or inappropriate to the offenses committed. Instead of preferring charges it is ordinarily preferable, especially in a minor case, to inform the accused's immediate commanding officer of the matter.

A person subject to military law can not legally be ordered to prefer charges to which he is unable truthfully to make the required oath on his own responsibility, but he may legally be ordered by a proper superior to prefer such charges as in the subordinate's opinion he may properly substantiate by the required oath. See 5a.

When any

26. WHEN PREFERRED. person subject to military law is placed in arrest or confinement, immediate steps will be taken to try the person accused or to dismiss the charge and release him. Any officer who is responsible for unnecessary delay in investigating or carrying the case to a final conclusion shall be punished as a court-martial may direct (A. W. 70). When it is intended to prefer charges, they should be preferred without unnecessary delay. An accumulation or saving up of charges through improper motives is prohibited; but when a good reason exists, (as when in the interest of discipline it is advisable to exhibit a continued course of conduct), a reasonable delay is permissible if the person concerned is not in arrest or confinement. See 21.

Ordinarily charges for an offense should not be preferred against an individual if, after exhaustive investigation, the only available evidence that the offense was committed is his statement that he committed it.

27. GENERAL RULES AND SUGGESTIONS. Before drafting charges and specifications the accuser should make an analysis of the facts and a study of the pertinent paragraphs of Chapter XXIX, in which appear the elements of proof of various offenses, and of Appendix 4, in which the forms of specifications are set forth.

One transaction, or what is substantially one transaction, should not be made the basis for an unreasonable multiplication of charges against one person. A soldier should not be charged with

both disorderly conduct and assault if the disorderly conduct consisted in making the assault, or with both a failure to report for a routine scheduled duty, such as reveille, and with absence without leave if the failure to report occurred during the period for which he is charged with absence without leave. The larceny of several articles should not be alleged in several specifications, one for each article, when the larceny of all of them can properly be alleged in one specification (180a). If a soldier willfully disobeys an order to do a certain thing, and persists in his disobedience when the same order is given by the same or other superior, a multiplication of charges of disobedience should be avoided (152b). There are times, however, when sufficient doubt as to the facts or the law exists to warrant making one transaction the basis for charging two or more offenses.

Ordinarily charges for minor derelictions should not be joined with charges for serious offenses. For example, a charge of failure to repair for reveille should not be joined with a charge of burglary. If, however, the minor offense serves to explain the circumstances of the greater offense, it is permissible to charge both.

A joint offense is one committed by two or more persons acting together in pursuance of a common intent. Anyone who commits an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission, is a principal; and anyone who causes an act to be done, which if directly performed by him would be an offense against the United States, is also a principal and punishable as such. But an accessory after the fact cannot be charged as a principal. A person whose only connection with a larceny was that he received the stolen goods, knowing them to be stolen, cannot be charged with the larceny, although he may be charged with wrongfully receiving stolen property. Offenders are properly joined only if there is a common unlawful design or purpose; the mere fact that several persons happen to have committed the same types of offenses at the same time, although material as tending to show concert, does not necessarily establish it. The fact that several soldiers happen to have absented themselves without leave at about the same time will not, in the absence of evidence indicating a conspiracy, justify joining them in one specification, for they

may merely have been availing themselves of the same opportunity of leaving.

In joint offenses the participants may be separately or jointly charged. The preparation of joint charges is discussed in detail in Appendix 4, Instructions ƒ. The advantage of a joint charge is that all the accused will be tried at one trial, thereby saving time, labor and expense. This must be weighed against the possible unfairness to the accused which may result if their defenses are inconsistent or antagonistic. See 70d, (Motion to Sever). In drafting charges in such cases it must also be remembered that an accused cannot be called as a witness for the prosecution without his consent (134d). If, therefore, the testimony of an accomplice is necessary, such accomplice should not be tried jointly with those against whom he is expected to testify.

28. DRAFTING OF CHARGES. The technical charge should be appropriate to all specifications under it, and ordinarily will be written: "Violation of the Article of War," giving the number of the article. Neither the designation of a wrong article nor the failure to designate any article is ordinarily material, provided the specification alleges an offense of which courts-martial have jurisdiction. However, if an offense is alleged for which a mandatory punishment is prescribed by a particular Article of War, such as premeditated murder (A. W. 92), a violation of that particular article must be alleged. also 78b. For other instructions see Appendix 4.

See

29. DRAFTING OF SPECIFICATIONS. a. The specification should include the following:

The name of the accused person and a showing, either by a description of such person by rank and organization or otherwise, that the accused is within court-martial jurisdiction as to persons. For rules as to the use of the christian name, use of an alias, change in rank, general prisoner, and similar matters see the instructions in Appendix 4. The serial number of the accused should not appear in the specification.

A statement in simple and concise language of the facts constituting the offense. The facts so stated will include all the elements of the offense sought to be charged. In this connection, see the fourth subparagraph of 87b. Any intent, or state of mind such as guilty knowledge, expressly made an essential ele

ment of an offense should be alleged; thus a misappropriation in violation of Article 94 should be alleged as "knowingly and willfully" done. If the alleged acts of the accused are not in themselves criminal or contrary to the custom of the service but are made an offense by statute (including Articles 95 and 96) or regulations, words importing criminality such as "wrongfully", "unlawfully", "without authority", "dishonorably" or "feloniously", depending upon the nature of the particular offense involved, should be used to describe the accused's acts. To a reasonable extent matters of aggravation may be recited. If applicable, the wording of the appropriate Article of War or other statute should be used in preference to a supposedly equivalent expression. In charging a person with being found drunk on duty, the specification should not allege that he was found intoxicated on duty.

A statement of when and where the offense was committed. Examples of the correct form for alleging time and place appear in Appendix 4, Instructions g.

b. One specification should not allege more than one offense either conjunctively or in the alternative. Thus a specification should not allege that the accused "lost and destroyed" or that he "lost or destroyed" certain property.

c. A specification alleging the violation of a written order, or of any written obligation—as an oath of allegiance or a parole-should set forth the writing, preferably verbatim, and the act or acts which constitute the alleged violation. Oral statements should be set out as nearly as possible in exact words, but should always be qualified by the words "or words to that effect," or some similar expression.

d. Some specimen charges and forms for specifications covering the more usual offenses are given in Appendix 4.

Chapter VII-Submission of and

Action Upon Charges GENERAL-SIGNING AND SWEARING ΤΟ CHARGES-FORWARDING CHARGES-ACTION BY COMMANDER EXERCISING IMMEDIATE JURISDICTION UNDER ARTICLE 104-ACTION BY OFFICER EXERCISING COURT-MARTIAL

JURISDICTION-INVESTIGATION OF CHARGES-REFERENCE TO STAFF JUDGE ADVOCATE

30. GENERAL. For the prescribed form and instructions in the preparation of the charge sheet see Appendix 3.

In the ordinary case charges will be submitted and acted upon as follows:

a. When any person has knowledge of an offense committed by a person subject to military law it is the custom of the service to report the facts to the immediate commanding officer of the offender. In the great majority of cases charges are actually preferred by the company, battery, or troop commander, who ordinarily exercises jurisdiction over the accused under Article 104. He does not prefer charges for offenses which he may properly dispose under Article 104; instead he imposes company punishment for such offenses and prefers charges only as to offenses which he believes will require trial by court-martial.

b. If someone other than the immediate commanding officer of the accused prefers charges he will forward them to the immediate commanding officer of the accused, so that any charges of which disposal can be made under Article 104 will be eliminated from the charges and to permit the immediate commanding officer to enter on the charge sheet the data which are available in the records of the organization. c. After the immediate commanding officer has preferred charges or has received charges preferred by someone else and has, as to offenses for which such action is proper, acted under Article 104, and has entered on the charge sheet all data which he can supply, he then forwards the remaining charges to the officer exercising summary court-martial jurisdiction.

d. The officer exercising summary court-martial jurisdiction may also dispose of offenses under Article 104 for which he deems such action proper. He then either disposes of the remainder of the charges by referring them to a summary court, or, if he exercises special or general court-martial jurisdiction, he may refer the charges to such courts subject to the limitations stated below under Basic Considerations. If he does not have special or general court-martial jurisdiction and desires to recommend trial by a court of one of these classes he forwards the charges with his recommendation to the commander authorized to appoint the particular kind of court which he believes should dispose of the

case.

e. Any commander superior to the officer exercising summary court-martial

jurisdiction to whom the charges may be forwarded will take the action described in d subject to the same limitations.

Detailed procedure. The matters discussed in the preceding part of this paragraph are treated in detail in the following paragraphs: 31, signing and swearing to charges; 32, the manner in which charges are forwarded; 33, the steps to be taken by the officer having jurisdiction under Article 104; 34, the steps to be taken by the officers exercising courtmartial jurisdiction (including action with a view to common trial); 35, the investigation of charges, the reference of charges to the staff judge advocate, and action to be taken in case of suspected insanity.

Basic considerations. Before taking action on charges certain basic considerations are always to be borne in mind:

First: No person subject to military law should ever be interrogated relative to an offense of which he is suspected or accused without first making certain that he understands his rights under Article 24.

Second: No charge shall be recommended for trial by general court-martial unless prior to such action the investigation required by Article 46b shall have been made (35a).

Third: No case shall be referred for trial by general court-martial unless it has been referred for consideration and advice to the staff judge advocate of the appointing authority (35b; A. W. 47b).

Fourth: No charge shall be referred for trial if the appointing authority is satisfied that the accused is insane or was insane at the time of the offense charged. See 110.

Fifth: When it appears to any accuser, or investigating officer, or commander to whom charges are forwarded in a particular case that a witness then available may not be so available at a subsequent stage of the proceedings or that because of distance or other reasons the disposition of the case may be delayed pending the taking of depositions, he will promptly make the matter known to the officer competent to appoint a courtmartial appropriate for the trial of the offense charged so that depositions may be taken in accordance with the third proviso of Article 25. See 106.

Exceptional cases. In exceptional cases in which the accused is not, strictly speaking, under the command of any

military authority inferior to the Department of the Army, for example, military attaches or retired personnel not on active duty, the general principles of this paragraph are applicable; but the

charges may, according to the particular circumstances, be forwarded either to the Department of the Army or to the commanding officer of the territorial command in which the accused may be.

31. SIGNING AND SWEARING TO CHARGES. See Article 46a. Charges and specifications will be signed and sworn to substantially as indicated on the form (App. 3). Available data as to service, witnesses, and similar items required to complete the form will be included. Ordinarily the charge sheet will be forwarded in triplicate, but only the original need be signed.

Charges need not be sworn to if the person signing them believes the accused to be innocent but deems trial advisable in the interest of the service or for the protection of the accused (e. g., in a case of homicide of an escaping prisoner which was apparently justified). In no case, however, should an accused be tried on unsworn charges over his objection.

32. FORWARDING CHARGES. Whenever the accuser is a person other than the commander exercising immediate jurisdiction over the accused under Article 104 and it appears to the accuser that the case will be disposed of either under Article 104 or by reference to a summary court-martial, he need not forward the charges by letter of transmittal. The forwarding of a charge by the officer exercising immediate jurisdiction under Article 104, unaccompanied by a letter of transmittal, will be considered a recommendation for trial by a summary courtmartial.

When charges are submitted with a view to trial by special or general courtmartial they will be forwarded by a letter of transmittal which should contain a specific recommendation as to the disposition of the charges, an explanation of any unusual features of the case, and a statement as to the character of the service of the accused. The letter of transmittal will also include or carry as an inclosure a summary of the evidence expected from each witness or other source. The signature of each witness to the summary of his testimony will be obtained unless the procurement of the signature will unduly delay the forwarding of the