Commander as accuser or prosecutor.President as prosecutor, so as to deprive him of power to appoint court-martial under art. 72, superseded by this section, see Swaim v. U. S. (1897), 165 U. S. 553. A commander of division who, upon information laid before him of grave misconduct on the part of a regimental officer in his command, directed the colonel of the regiment (from whom the information was received) to prefer charges against the alleged offender, and who saw that the charges were put in proper form, and to that extent superintended their preparation, held not to be deemed the accuser or prosecutor of such alleged offender. And it was held that where the record of a trial before a court-martial was defective, in failing to show who was the originator or signer of the charges against the accused, and who was to be treated legally as the accuser or prosecutor, evidence aliunde was admissible to supply the information. (1878) 16 Op. Atty. Gen. 107. A general officer commanding a mili tary department held to have no power to appoint a court-martial for the trial of an officer under his command where he was himself the " accuser or prosecutor." (1882) 17 Op. Atty. Gen. 436. Convening order.-A camp commander, in exerting the power which he possesses by virtue of a general order of the President, sanctioned by this article, need not refer to such order. Givens v. Zerbst (1921), 254 U. S. ; 65 L. Ed. 284. Prosecutor as member of court.-Where a court-martial has jurisdiction of the person of accused, its sentence is valid, when questioned collaterally, although irregularities or errors are alleged to have occurred in its proceedings, in that the prosecutor was a member of the court and a witness on the trial. Keyes v. U. S. (1883), 3 Sup. Ct. 202, 204, 109 U. S. 336, 27 L. Ed. 954. And where an officer on trial, having an opportunity to object to any member of the court-martial, makes no objection to one who preferred one of the charges, and will be a witness to establish it, he consents to the court being so made up, and can not question its jurisdiction for that reason. Keyes v. U. S. (1879), 15 Ct. Cl. 532. Art. 9. Special courts-martial.-The commanding officer of a district, garrison, fort, camp, or other place where troops are on duty, and the commanding officer of a brigade, regiment, detached battalion, or other detached command may appoint special courts-martial; but when any such commanding officer is the accuser or the prosecutor of the person or persons to be tried the court shall be appointed by superior authority, and may in any case be appointed by superior authority when by the latter deemed desirable; and no officer shall be eligible to sit as a member of such court when he is the accuser or a witness for the prosecution. Same as in Code of 1916, For the authority to appoint special courts-martial in the National Guard not in the service of the United States, see sec. 104, act of June 3, 1916, ante, 2560. Art. 10. Summary courts-martial. The commanding officer of a garrison, fort, camp, or other place where troops are on duty, and the commanding officer of a regiment, detached battalion, detached company, or other detachment may appoint summary courts-martial; but such summary courts-martial may in any case be appointed by superior authority when by the latter deemed desirable: Provided, That when but one officer is present with a command he shall be the summary court-martial of that command and shall hear and determine cases brought before him. Same as in Code of 1916. For the authority to appoint summary courts-martial in the National Guard not in the service of the United States, see sec. 105, act of June 3, 1916, ante 2561. Art. 11. Appointment of trial judge advocates and counsel.-For each general or special court-martial the authority appointing the court shall appoint a trial judge advocate and a defense counsel, and for each general court-martial one or more assistant trial judge advocates and one or more assistant defense coun sel when necessary: Provided, however, That no officer who has acted as member, trial judge advocate, assistant trial judge advocate, defense counsel, or assistant defense counsel in any case shall subsequently act as staff judge advocate to the reviewing or confirming authority upon the same case. Article 11, Code of 1916, read as follows: "ART. 11. APPOINTMENT OF JUDGE ADVOCATES.-For each general or special court-martial the authority appointing the court shall appoint a judge advocate and for each general court-martial one or more assistant judge advocates when necessary." C. JURISDICTION. Art. 12. General courts-martial.-General courts-martial shall have power to try any person subject to military law for any crime or offense made punishable by these articles, and any other person who by the law of war is subject to trial by military tribunals: Provided, That no officer shall be brought to trial before a general court-martial appointed by the Superintendent of the Military Academy: Provided further, That the officer competent to appoint a general court-martial for the trial of any particular case may, when in his judgment the interest of the service shall so require, cause any case to be tried by a special court-martial notwithstanding the limitations upon the jurisdiction of the special court-martial as to offenses set out in article 13; but the limitations upon jurisdiction as to persons and upon punishing power set out in said article shall be observed. The second proviso is new. On Jan. 22, 1919, shortly after the armistice in the World War, the War Department Issued instructions that "in view of the cessation of hostilities and the reestablishment of conditions approximating those of peace within the territorial limits of the United States, the propriety of observing limitations upon the punishing powers of courtsmartial as established by Executive order of Dec. 15, 1916, is obvious," and directed that trial by general court-martial within the territorial limits of the United States should be restricted to cases where adequate punishment could not be imposed by a special or summary court or under art. 104, post. The provisions of this telegram were merely directory, however, and concerned only the punishment to be inflicted, and until the enactment of the above article, containing this new proviso, an offense which was capital only in time of war (e. g., arts. 58, 59, 86) had to be tried by general courtmartial so long as a technical state of war existed. This made necessary the trial by general court-martial of many minor offenses which would otherwise have been tried by special or summary court. The reason for now permitting such cases to be sent to a special court, but not to a summary court, is probably found in the greatly reduced punishing power of the summary court, under the new articles. See art. 14, post. Notes of Decisions. War under 1720, ante, and premiums on war risk insurance, are not affected by sentences of courts-martial imposing a forfeiture of pay. (1918) 24 Comp. Dec. 621, "Military law" defined.-U. S. v. McDonald (D. C. 1920), 265 Fed. 754. See notes under arts. 3 and 5, ante. Power to adjudge forfeiture. The monthly compulsory allotment of pay under the act of Oct. 6, 1917, as amended, ante 1723, voluntary allotments under Class B of that act, 1739, ante, Liberty Loan allotments made during the World Art. 13. Special courts-martial.-Special courts-martial shall have power to try any person subject to military law for any crime or offense not capital made punishable by these articles: Provided, That the President may, by regulations, except from the jurisdiction of special courts-martial any class or classes of persons subject to military law. Commander as accuser or prosecutor.President as prosecutor, so as to deprive him of power to appoint court-martial under art. 72, superseded by this section, see Swaim v. U. S. (1897), 165 U. S. 553. A commander of division who, upon information laid before him of grave misconduct on the part of a regimental officer in his command, directed the colonel of the regiment (from whom the information was received) to prefer charges against the alleged offender, and who saw that the charges were put in proper form, and to that extent superintended their preparation, held not to be deemed the accuser or prosecutor of such alleged offender. And it was held that where the record of a trial before a court-martial was defective, in failing to show who was the originator or signer of the charges against the accused, and who was to be treated legally as the accuser or prosecutor, evidence aliunde was admissible to supply the information. (1878) 16 Op. Atty. Gen. 107. A general officer commanding a mili was (18 Co exert 254 U. Pros was a m Art. 9. Special courts-martial.-The commanding son, fort, camp, or other place where troops are on d officer of a brigade, regiment, detached battalion, or may appoint special courts-martial; but when any su the accuser or the prosecutor of the person or persons t. be appointed by superior authority, and may in any superior authority when by the latter deemed desirable · eligible to sit as a member of such court when he is t for the prosecution. Same as in Code of 1916. For the authority to appoint special courts-martial in the N service of the United States, see sec. 104, act of June 3, 1916, Art. 10. Summary courts-martial.-The commanding offic camp, or other place where troops are on duty, and the co regiment, detached battalion, detached company, or other point summary courts-martial; but such summary courtscase be appointed by superior authority when by the latte Provided, That when but one officer is present with a comm summary court-martial of that command and shall hear a brought before him. Same as in Code of 1916. For the authority to appoint summary courts-martial in the Nation service of the United States, see sec. 105, act of June 3, 1916, ante 2 Art. 11. Appointment of trial judge advocates and counsel.or special court-martial the authority appointing the court sha judge advocate and a defense counsel, and for each general c or more assistant trial judge advocates and one or more assista terminated and the rebel army has surrendered. In re Egan (C. C. 1866), Fed. Cas. No. 4,303. The crime of murdering the President of the United States in time of civil war is triable by a military commission. Ex parte Mudd (D. C. 1868), Fed. Cas. No. 9,899. Jurisdiction of provost courts.-Provost courts are military courts having a wellknown jurisdiction, which is limited exclusively to minor offenses, tending to disorder and breaches of the peace, by solliers and citizens within the lines of ar rmy, and occupy with reference to such fenses a similar position with that of lice courts in our cities. Field, J., disting, Mechanics', etc., Bank v. Union k (1874), 22 Wall. 276, 301. or jurisdiction of a provost court of militia not in Federal service, see 4 States v. Wolters (D. C. 1920), 268 $69. be triable only by general and officer, when it can be avoided, nd special are new. ised, does not of itself render em incompetent to sit. (1882) Gen. 397. he appointment on a general of officers inferior in rank to avoided is committed to the the appointing officer, who red to have acted in pursud the sentence of a courtbe collaterally attacked by quiry whether the trial by rank to the accused was v. U. S. (1897), 17 Sup. U. S. 553, 41 L. Ed. 823. nd. The trial judge ute in the name of court, prepare the to be represented on, civil counsel if ailable, otherwise int to article 11. ense counsel and used so desires, Special courts-martial shall not have power to adjudge confinement in excess of six months, nor to adjudge forfeiture of more than two-thirds pay per month for a period of not exceeding six months. Art. 13, Code of 1916, read as follows: “ART. 13. SPECIAL COURTS-MARTIAL.-Special courts-martial shall have power to try any person subject to military law, except an officer, for any crime or offense not capital made punishable by these articles: Provided, That the President may, by regulations, which he may modify from time to time, except from the jurisdiction of special courtsmartial any class or classes of persons subject to military law. Special courts-martial shall not have power to adjudge dishonorable discharge, nor confinement in excess of six months, nor to adjudge forfeiture of more than six months' pay." See notes under arts. 3, 5, and 12, ante. Art. 14. Summary courts-martial.-Summary courts-martial shall have power to try any person subject to military law, except an officer, a member of the Army Nurse Corps, a warrant officer, an Army field clerk, a field clerk Quartermaster Corps, a cadet, or a soldier holding the privileges of a certificate of eligibility to promotion, for any crime or offense not capital made punishable by these articles: Provided, That noncommissioned officers shall not, if they object thereto, be brought to trial before a summary court-martial without the authority of the officer competent to bring them to trial before a general courtmartial: Provided further, That the President may, by regulations, except from the jurisdiction of summary courts-martial any class or classes of persons subject to military law. Summary courts-martial shall not have power to adjudge confinement in excess of one month, restriction to limits for more than three months, or forfeiture or detention of more than two-thirds of one month's pay. The following portion of the first paragraph is new: a member of the Army Nurse Corps, a warrant officer, an Army field clerk, a field clerk Quartermaster Corps." The words, "which he may modify from time to time," which followed the word "regulations," in the second proviso of the first paragraph have been omitted. The second paragraph of art. 14, Code of 1916, read as follows: Summary courts-martial shall not have power to adjudge confinement in excess of three months, nor to adjudge the forfeiture of more than three months' pay: Provided, That when the summary court officer is also the commanding officer no sentence of such summary court-martial adjudging confinement at hard labor or forfeiture of pay, or both, for a period in excess of one month shall be carried into execution until the same shall have been approved by superior authority." See notes under arts. 3, 5, and 12, ante. Art. 15. Jurisdiction not exclusive. The provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions, provost courts, or other military tribunals. Same as art. 15, Code of 1916, except that the word " jurisdiction" is inserted in the title and the words "by statute or" in the text; the word "lawfully," which appeared in the former article, preceding the word "triable," has been omitted. Notes of Decisions. Jurisdiction of civil courts. A district court has jurisdiction to indict and try a person charged with having forged an obligation of the United States with intent to defraud, which is made an offense against the United States by R. S. 5414, sec. 148, act of Mar. 4, 1909 (35 Stat. 1115), although he was at the time an officer of the Army, and the alleged offense was commited at a military post, and with intent to defraud an enlisted soldier, where the accused has since been discharged from the |