Army without any action against him having been taken by the military authorities; there being no provision, either constitutional or statutory, conferring exclusive jurisdiction on courts-martial to punish such offense. Neall v. United States (1902), 118 Fed. 699, 56 C. C. A. 31.

This article does not impliedly deprive civil courts of concurrent jurisdiction. U. S. v. Hirsch (D. C. 1918), 254 Fed. 109; People v. Denman (Calif. 1918), 177 Pac. 461.

Jurisdiction of military commission.-A person committing an offense in a place where the Federal courts are closed by civil war, and arrested and tried in a place where the Federal courts are open, can not be tried by military commission. In re Murphy (C. C. 1867), Fed. Cas. No. 9,947. Nor can a person be tried by a miltary commission for a murder committed in a rebel country five months after hostilities have

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 soldiers and citizens within the lines of an army, and occupy with reference to such offenses a similar position with that of police courts in our cities. Field, J., dissenting, Mechanics', etc., Bank v. Union Bank (1874), 22 Wall. 276, 301.

For jurisdiction of a provost court of the militia not in Federal service, see United States v. Wolters (D. C. 1920), 268 Fed. 69.

Art. 16. Officers; how triable.-Officers shall be triable only by general and special courts-martial, and in no case shall an officer, when it can be avoided, be tried by officers inferior to him in rank.

Same as in Code of 1916, except that the words "and special" are new.

Notes of Decisions.

Discretion of commanding officer.-This provision is not prohibitory but directory only upon the convening authority. Its effect is to leave to the discretion of that officer, as the conclusive authority and judge, the determination of the rank of the members, with only the general instruction that superiors in rank to the accused shall be selected, so far as the exigencies and interests of the service will permit. Mullan v. U. S. (1891), 140 U. S. 240.

Inferiority in rank or grade. That one of the officers composing a court-martial is junior in rank and another inferior in grade

to the accused, does not of itself render either of them incompetent to sit. (1882) 17 Op. Atty. Gen. 397.

Whether the appointment on a general court-martial of officers inferior in rank to accused can be avoided is committed to the discretion of the appointing officer, who must be presumed to have acted in pursuance of law, and the sentence of a courtmartial can not be collaterally attacked by going into an inquiry whether the trial by officers inferior in rank to the accused was avoidable. Swaim v. U. S. (1897), 17 Sup. Ct. 448, 450, 165 U. S. 553, 41 L. Ed. 823.

D. PROCEDURE.

Art. 17. Trial judge advocate to prosecute; counsel to defend. The trial judge advocate of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of its proceedings. The accused shall have the right to be represented in his defense before the court by counsel of his own selection, civil counsel if he so provides, or military if such counsel be reasonably available, otherwise by the defense counsel duly appointed for the court pursuant to article 11. Should the accused have counsel of his own selection, the defense counsel and assistant defense counsel, if any, of the court, shall, if the accused so desires, act as his associate counsel.

Article 17, Code of 1916, read as follows:

"ART. 17. JUDGE ADVOCATE TO PROSECUTE.-The judge advocate of a general or special court-martial shall prosecute in the name of the United States, and shall, under the

direction of the court, prepare the record of its proceedings. The accused shall have the right to be represented before the court by counsel of his own selection for his defense, if such counsel be reasonably available, but should he, for any reason, be unrepresented by counsel, the judge advocate shall from time to time throughout the proceedings advise the accused of his legal rights."

Art. 18. Challenges.-Members of a general or special court-martial may be challenged by the accused or the trial judge advocate for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time. Challenges by the trial judge advocate shall ordinarily be presented and decided before those by the accused are offered. Each side shall be entitled to one peremptory challenge; but the law member of the court shall not be challenged except for cause. Art. 18, Code of 1916, read as follows:

"ART. 18. CHALLENGES.-Members of a general or special court-martial may be challenged by the accused, but only for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time."

Notes of Decisions.

Challenges.-The decision of a court-martial in determining the validity of a challenge to one of its members can not be reviewed in a collateral action. Swaim v. U S. (1897), 165 U. S. 531; 17 Sup. Ct. 448; 41 L. Ed. 823.

a

It is a matter within the jurisdiction of court-martial to determine the competency of a member when challenged. In re Feinler (Sup. Ct., D. C., 1921), 49 Wash, L. R. 147.

Art. 19. Oaths.-The trial judge advocate of a general or special court-martial shall administer to the members of the court, before they proceed upon any trial, the following oath or affirmation: "You, A. B., do swear (or affirm) that you will well and truly try and determine, according to the evidence, the matter now before you, between the United States of America and the person to be tried, and that you will duly administer justice, without partiality, favor, or affection, according to the provisions of the rules and articles for the government of the armies of the United States, and if any doubt should arise, not explained by said articles, then according to your conscience, the best of your understanding, and the custom of war in like cases; and you do further swear (or affirm) that you will not divulge the findings or sentence of the court until they shall be published by the proper authority or duly announced by the court, except to the trial judge advocate and assistant trial judge advocate; neither will you disclose or discover the vote or opinion of any particular member of the court-martial upon a challenge or upon the findings or sentence, unless required to give evidence thereof as a witness by a court of justice in due course of law. So help you God."

When the oath or affirmation has been administered to the members of a general or special court-martial, the president of the court shall administer to the trial judge advocate and to each assistant trial judge advocate, if any, an oath or affirmation in the following form: “You, A. B., do swear (or affirm) that you will faithfully and impartially perform the duties of a trial judge advocate, and will not divulge the findings or sentence of the court to any but the proper authority until they shall be duly disclosed. So help you God."

All persons who give evidence before a court-martial shall be examined on oath or affirmation in the following form: "You swear (or affirm) that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth. So help you God."

Every reporter of the proceedings of a court-martial shall, before entering upon his duties, make oath or affirmation in the following form: "You swear (or affirm) that you will faithfully perform the duties of reporter to this court. So help you God.”

Every interpreter in the trial of any case before a court-martial shall, before entering upon his duties, make oath or affirmation in the following form: "You swear (or affirm) that you will truly interpret in the case now in hearing. So help you God."

In case of affirmation the closing sentence of adjuration will be omitted. Same as art. 19, Code of 1916, except that the word "trial" is inserted in each instance before the words "judge advocate"; the words "or duly announced by the court" and upon a challenge or upon the findings or sentence" in the first paragraph are new; the words "will faithfully and impartially perform the duties of a trial judge advocate, and " in the second paragraph are new; the concluding words of the first sentence of the former second paragraph were "shall be duly disclosed by the same," the last three words thereof being now omitted. These changes conform to the procedure under art. 29, post.

Notes of Decisions.

void. (1838) 3 Op. Atty. Gen. 397; (1840) Id. 544.

In such cases the accused may be put upon another trial; but not before the same officers who constituted the first court. (1838) 3 Op. Atty. Gen. 397.

Oath of judge advocate.-The judge advocate of a court-martial is required to be sworn; and if the proceedings of the court do not show that he was sworn, it is to be presumed that he was not, and the proceedings may be regarded as irregular and Art. 20. Continuances.-A court-martial may, for reasonable cause, grant a continuance to either party for such time and as often as may appear to be just, Same as in Code of 1916.

Art. 21. Refusal or failure to plead.-When an accused arraigned before a court-martial fails or refuses to plead, or answers foreign to the purpose, or after a plea of guilty makes a statement inconsistent with the plea, or when it appears to the court that he entered a plea of guilty improvidently or through lack of understanding of its meaning and effect, the court shall proceed to trial and judgment as if he had pleaded not guilty.

Art. 21, Code of 1916, read as follows:

ART. 21. REFUSAL TO PLEAD.--When the accused, arraigned before a court-martial, from obstinacy and deliberate design stands mute or answers foreign to the purpose, the court may proceed to trial and judgment as if he had pleaded not guilty."

Art. 22. Process to obtain witnesses. Every trial judge advocate of a general or special court-martial and every summary court-martial shall have power to issue the like process to compel witnesses to appear and testify which courts of the United States, having criminal jurisdiction, may lawfully issue; but such process shall run to any part of the United States, its Territories, and possessions.

Same as art. 22, Code of 1916, except that the word "trial" is inserted before the words "judge advocate."

Sec. 25 of the sundry civil appropriation act of Mar. 3, 1863 (12 Stat. 754), first gave courts-martial this power. That section read as follows:

"That every judge advocate of a court-martial or court of inquiry hereafter to be constituted, shall have power to issue the like process to compel witnesses to appear and testify which courts of criminal jurisdiction within the State, Territory, or district where such military courts shall be ordered to sit may lawfully issue."

For power to issue process to secure the attendance and testimony of witnesses before courts-martial in the National Guard, not in the service of the United States, see sec. 108, act of June 3, 1916, ante 2562.

Notes of Decisions.

Power to compel attendance of witnesses in general. Prior to the enactment of the act of Mar. 3, 1863, above cited, there was no law authorizing a court-martial to compel the attendance of witnesses who were not in the military service. (1859) 9 Op. Atty. Gen. 311.

Construction of section in general.--The provisions of this section apply only to military courts. (1890) 19 Op. Atty. Gen.

501.

Process for witness. The process authorized by this section may be directed to the officers who by the practice of the service are ordinarily charged with the duty of performing the executive business of courtsmartial. (1868) 12 Op. Atty. Gen. 501.

In securing the testimony of a witness the court is restricted to the means which it is thus authorized to employ. It can not inflict any punishment where the power to impose it is not clearly conferred by Congress. (1885) 18 Op. Atty. Gen. 278.

Art. 23. Refusal to appear or testify.-Every person not subject to military law who, being duly subpoenaed to appear as a witness before any military court, commission, court of inquiry, or board, or before any officer, military or civil, designated to take a deposition to be read in evidence before such court, commission, court of inquiry, or board, willfully neglects or refuses to appear, or refuses to qualify as a witness, or to testify, or produce documentary evidence which such person may have been legally subpœnaed to produce, shall be deemed guilty of a misdemeanor, for which such person shall be punished on information in the district court of the United States or in a court of original criminal jurisdiction in any of the territorial possessions of the United States, jurisdiction being hereby conferred upon such courts for such purpose; and it shall be the duty of the United States district attorney or the officer prosecuting for the Government in any such court of original criminal jurisdiction, on the certification of the facts to him by the military court, commission, court of inquiry, or board, to file an information against and prosecute the person so offending, and the punishment of such person, on conviction, shall be a fine of not more than $500 or imprisonment not to exceed six months, or both, at the discretion of the court: Provided, That the fees of such witness and his mileage, at the rates allowed to witnesses attending the courts of the United States, shall be duly paid or tendered said witness, such amounts to be paid out of the appropriation for the compensation of witnesses: Provided further, That every person rot subject to military law, who before any court-martial, military tribunal, or military board, or in connection with, or in relation to any proceedings or investigation before it or had under any of the provisions of this act, is guilty of any of the acts made punishable as offenses against public justice by any provision of chapter 6 of the Act of March 4, 1909, entitled “An Act to codify, revise, and amend the penal laws of the United States" (volume 35, United States Statutes at Large, page 1088), or any amendment thereof, shall be punished as therein provided.

This article became effective on June 4, 1920. The second proviso is new. Payment of fees to witnesses is regularly included in provision for “ Pay and so forth of the Army" in acts making appropriations for the support of the Army.

Notes of Decisions.

Production of documentary evidence. Where a witness subpoenaed to produce certain documents before a military courtmartial testified that he had destroyed the documents before service of the subpœna, his failure to produce did not constitute a wilful refusal to produce such documents

within this section. U. S. v. Praeger (D. C. 1907), 149 Fed. 474.

Payment of fees.-This section requires that the legal fees of the witness shall be first duly paid or tendered in order to lay the foundation for a prosecution thereunder. A mere statement in the subpœna,

signed by the judge advocate of the courtmartial, to the effect that the United States tenders or guarantees the payment of the authorized fees, is not a sufficient compliance. (1901) 23 Op. Atty. Gen. 424.

Prosecution under this section. In a proceeding to punish a civilian for refusal to testify before a general military courtmartial, under this section, the parties may waive a jury by written stipulation. U. S. r. Praeger (D. C. 1907), 149 Fed. 474.

Art. 24. Compulsory self-incrimination prohibited. No witness before a military court, commission, court of inquiry, or board, or before any officer conducting an investigation, or before any officer, military or civil, designated to take a deposition to be read in evidence before a military court, commission, court of inquiry, or board, or before an officer conducting an investigation, shall be compelled to incriminate himself or to answer any question the answer to which may tend to incriminate him, or to answer any question not material to the issue when such answer might tend to degrade him.

Art. 24, Code of 1916, read as follows:

"ART. 24. COMPULSORY SELF-INCRIMINATION PROHIBITED.-No witness before a milltary court, commission, court of inquiry, or board, or before any officer, military or civil, designated to take a deposition to be read in evidence before a military court, commission, court of inquiry, or board, shall be compelled to incriminate himself or to answer any questions which may tend to incriminate or degrade him."

Notes of Decisions.

Self-incriminating

testimony. Where a civilian, subpoenaed to appear before a court-martial, was advised by competent counsel that certain questions asked of him with reference to a publication concerning an army rifle contest, if answered, might subject him to a civil or criminal prosecution for libel, and for this reason he refused to answer on advice of counsel, and not from any evil intent, or with legal malice, his refusal would not constitute a violation of this section. And the decision of the court-martial that the questions asked were proper would not be conclusive on the civil courts of the question whether the witness was guilty of contempt in refusing to answer. U. S. v. Praeger (D. C. 1907), 149 Fed. 474.

Where at a trial by a court-martial a witness objected to answering a question on the ground of self-incrimination, but the court required him to answer, the judge advocate reading in support of this requirement R. S. 860 (repealed), that, if the

court committed an error in compelling the witness to answer the error was not such as to require a disapproval of the proceedings. (1883) 17 Op. Atty. Gen. 616.

Paper seized from accused. The fact that private papers are unlawfully seized from a defendant does not render them incompetent to be used as evidence against him in a court-martial proceeding, even though he objected to such use at the time the papers were offered in evidence. (1899) 22 Op. Atty. Gen. 589. But see Gouled v. U. S. (1921), 254 U. S. —; 65 L. Ed. 311.

Comparison of handwriting.-Evidence of handwriting, by comparison of hands, is inadmissible on a trial by court-martial, excepting where the writing, acknowledged to be genuine, is already in evidence in the case, or the disputed writing in an ancient document. The admission of such evidence is error, for which, if it was material to the finding of the court, the sentence of the latter should be set aside. (1882) 17 Op. Atty. Gen. 310.

Art. 25. Depositions-When admissible.-A duly authenticated deposition taken upon reasonable notice to the opposite party may be read in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or a military board, if such deposition be taken when the witness resides, is found, or is about to go beyond the State, Territory, or District in which the court, commission, or board is ordered to sit, or beyond the distance of 100 miles from the place of trial or hearing, or when it appears to the satisfaction of the court, commission, board, or appointing authority that the witness, by reason of age, sickness, bodily infirmity, imprisonment, or other reasonable cause, is unable to appear and testify in person at the place of