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money by A. B. 5. Prove the embezzlement or misapplication of the whole, or part thereof of the money so received. “ The usual presumptive evidence of this fact is that the defendant never accounted with his master (or to the proper dept.) for the money, &c. so received by him, or denied his having received it.”—(Archbold's Crim. Plea., p. 158.)
Witnesses.] One witness to prove the receipt of the sum or sums of money by A. B. One witness to prove the embezzlement or misapplication of the whole or part thereof of the money so received by A.B.
4. Punishment.] In the case of officers—by the art. shall be dismissed the service and forfeit the arrears of pay due on account of pay and allowances, or so much thereof as may be sufficient to make good the deficiency. By sec. xli. M. A. to be transported as a felon for life, or for any certain term of years, or to suffer such punishment of fine, imprisonment, dismissal from the Co.'s service, and incapacity of serving the Co. in any office, civil or mil., as any court shall think fit, according to the nature and degree of the offence; and in addition to make good the loss and damage sustained which shall have been ascertained by the court—the same to be recovered in the Supreme Court. - (See séc. xli, at No. 1, art. 1, of this sec.) In the case of withholding pay for one month, or not paying it when it becomes due.-By sec. xliv. M. A. shall be discharged from his employment, and forfeit to the informer, upon conviction before the said court, 800 Sa. Rs., and be liable to such further punishment as shall by the ct.-mar. be awarded.—(See No. 1, of this art.)
Warrant Officers.] The same as officers above. But if he originally enlisted as a private soldier, and shall have continued in the service till his appointment to be a warrant officer (sec. xiv, art. 15), may at the discretion of a genl, or detachment ct.-mar., be dismissed the service, or be reduced to serve either in the capacity of a N. C. O. or private soldier, and be put under stoppages until the money embezzled or misapplied be made good. N. B. The art. uses the words “and shall also suffer such other penalty or imprisonment as he is liable to by the act for punishing mutiny and desertion”-i. e. any one of those punishments awarded by the sects. of the M. A. in the case of embezzlement, &c. viz. sects. xli. and xliv. relating to officers. Incapacity and making good the loss or damage are in addition to any of them.
Case l.] G. 0. C. C., 14th March 1916. Charges. Col. F. R., ist bat. 3d N. I., placed under arrest on the following charge :
Disobedience of Orders.-Ist. “ In having, up to the month of Nov. 1815, withheld from the men under his command, the annual half mounting (28), due to them for the years 1813, 1814, 1815. .“ In not having paid to the men, drafted from the 1st bat. 3d Nat. Regt., into new corps, the stoppages made from them, on account of half mounting ; the half mounting then not having been delivered out. “[Scandalous] conduct, unworthy of an officer and a gentleman.
half (28) Abolished by instructions from Court of Directors, under date 25th Nov. 1823.-(See G. 0, Govt, Ft. William, 6th May, 1824.)
2d. “ In embezzling a portion of the money stopped for the regtl. purpose of half mounting, from the men so drafted from the 1st bat., 3d Nat. Regt., into new corps.
“ In having, up to the month of Nov. 1815, embezzled the sums of money stopped for the regtl. purpose of half mounting, to the soldiers under his command, for the years 1813, 1814, 1815.
Addl. Charges.] “ For scandalous conduct, unworthy of an officer and a gentleman, in having, up to the month of Jan. 1816, embezzled the sums of money stopped from certain men of the 5th, 6th, 7th, and 8th comps. Ist bat. 3d Nat. Regt, for the regtl. purpose of half mounting, for the year 1809; the said men, on the 1st of Jan. 1816, not having received the half mounting for the year 1809, or any sum in lieu thereof."
FINDING-Guilty of the 1st and 2d charges (except of the word in italics).
With respect to the additional charge, the court, with reference to what has been recorded on their proceedings, are of opinion that they were not warranted by the Ann. M. A., in taking cognizance of the same.
Sentence—The court adjudge him to be dismissed the service, and further to forfeit the arrears due to him, on account of pay, so far as may be sufficient to make good the deficiency, occasioned by the embezzlement found, amounting to about the sum of 9,500 St. Rs.
Approved and confirmed: (Signed) MOIRA. The essential quality of the proceedings into which Col. R. has suffered himself to be betrayed, is decisively exhibited by the opinion pronounced. The justly measured sentence of the court will be a sufficient indication, that no excuse of accidental interruptions can be admitted for withholding from the soldier that which is due, and that no plea will be admitted which shall endeavour to represent, as a legitimate perquisite, gains drawn by a comg. officer from the men of his bat., to the evident injury of those whom it is his special duty to protect.
Believing that no instance of the sort has before occurred in this service, and certain that the present example prevents the possibility of its happening hereafter, the Com. in chief is glad that he can allow himself to yield to a solicitation which the court has made for lenity, on the ground of Col. R.'s length of service. The Com. in chief, therefore, remits the penalty of dismissal from the service of the H. C., but directs that Col. R. be removed from the command of the bat., until Maj.gen. J. S. Wood shall certify that every just pecuniary claim of the bat., on Col. R. has been satisfied.
The conduct of the officers comg. comps., and of the adjt., in suffering the irregularities to proceed without interference, calls for remarks. The former, as entrusted with the interests of the men composing their
comps.; comps.; the latter, as called upon by his station to advert to every thing which might affect the satisfaction of the soldiers, ought to have applied to Col. R., and, in the event of his not making the due arrangements, should have appealed to the Com. in chief.
This order to be particularly read by the adjt. or interp. and quart. mast. of the bats. to every corps on the Bengal estab.
By command: (Signed) C. J. DOYLE, Mil. Sec. CASE 2.) At a Nat. genl. ct.-mar. at Bareilly, on 7th July 1823, Ameer Khan, rissaldar, second local or Gardner's horse, was arraigned upon the under mentioned charges, viz.
3d « For withholding and applying to his private use from the 14th of April, till late in May, the payment of his detachment for February 1823, instead of immediately disbursing it, on its being received by him from the collector's treasury."
4th. “ For withholding from individuals, a portion of their pay, even beyond the time specified in the preceding count." (The other charges were for making stoppages from the men in disobedience of orders, and other misconduct.] .
FINDING–Guilty. SENTENCE—To be dismissed the service. Approved and confirmed: (Signed) E. Pager, Genl. Com. in chief
in India. The Penalty if a Non-com. Officer Embezzle, &c. the Pay of the Men
under his Command, or the Enlisting Money intrusted to him. ART. 5.) Every non-com. officer who shall be convicted at a genl. or regl. et.-mar., of having embezzled or misapplied any money with which he may have been entrusted, for the payment of the men under his command, or for enlisting men into the service, or for any regti. purpose, shall be reduced to serve in the ranks as a private soldier, be put under stoppages until the money be made good, and suffer imprisonment or such other corporal punishment as the ct.-mar. shall think fit.
1. Explanation.] By sec. xlii. of the M. A, it is further enacted, " that every N.C.O. who shall be convicted at a genl. or regl. ct.mar. of having embezzled or misapplied any money with which he may have been entrusted for the payment of the men under his command, shall be reduced to serve in the ranks as a private soldier, and be put under stoppages until the money be made good, and suffer such corporal punishment (not extending to life or limb) as the ct.-mar. shall think fit." The variance between this sec. and the above art, consists, in omitting, in the former, the words “ or for enlisting men into the service," and the word “imprisonment.” They are retained in sec. cxxx. of the Ann. M. A. 1824. The omission in sec. xlii. M. A. 4 Geo. IV, cap. 81, must have been owing to the circumstances of European soldiers being enlisted in England. Such N.C.O, may be tried in England by virtue of the 50th Geo. III.-(See sec. xciii, Ann. M. A. 1824.) Imprisonment is however awardable by the art.
2. Charges.] See art. 4. 3. Evidence.) See art. 4.
4. Punishment.] Reduced to the ranks as a private soldier, be put under stoppages until the money be made good, and suffer imprisonment or such other corporal punishment as the ct.-mar. shall think fit. It is not stated whether the stoppages are to be weekly or not, as in the case of the 3d article of this sec. In that case it is declared, that the N.C. O. or soldier is to undergo such weekly stoppages (not exceeding the half of his pay and allowances). In this case it would appear to be right, having ascertained the amount embezzled, &c., to direct the N.C.O. “ to be put under stoppages until the money be made good,” leaving the Com. in chief or comg. officer (according as it may be, a genl, or regl. court) to direct the proportion of the pay, &c. to be stopped.
The Captain to be accountable for the Arms, &c. of his Company.
ART. 6.] Every capt. or comg officer of a troop or co., is charged with the arms, accoutrements, ammn., clothing, or other warlike stores, belonging te the troop or co. under his command, for which he is to be accountable in case of their being lost, spoiled, or damaged, not by unavoidable accident or on actual service.
1. Explanation.] “ Capts. or comg. officers of troops or companies, are to repair the arms and accoutrements of their respective troops or co.'s (on the established allowance), and comg, officers of corps are to be answerable that they are kept in proper and serviceable order; and that an establishment of artificers, sufficient for that purpose, is kept up in the corps jointly by the comdts. of co.'s.” M. C. 20th June, 1796.—(Henley's Bengal Mil. Regs., p. 449.) The repairs above alluded to, do not extend to such repairs as can only be properly done in a magazine-such as stocking a musket, &c. If a N. C. O. or soldier loses, or designedly or through neglect spoils, or damages, &c. his arms, &c. &c., he is to be put under weekly stoppages, besides being punished as directed by the 2d and 3d articles of this sec. When, therefore, a capt, or comg, officer of a co. becomes acquainted with any of the above circumstances, and does not take the proper notice of the same; or that from want of care, arms, &c. are placed in situations where they may be spoiled or damaged, he would, in such cases, be accountable
be required to make good such loss or damage, occasioned by any neglect on his part, or in suffering to pass unnoticed the neglects of those under his command; having the use of arms, &c. which are the property of the E. I. Co. It appears, also, to be the intention of the article, to extend the responsibility to cases even “ on actual service," where by any neglect arms, &c. may be lost, spoiled, or damaged for troops are said to be on actual service when in the pursuit, &c. of an enemy when, of course, care is to be taken of the arms, &c. The non-responsibility would, therefore, only apply to the case of an action, or actual fighting, when attention cannot be paid to any other circumstance. The words warlike stores are synonymous with mil. stores, including all such stores which are the property of the E. I. Co. belonging to a co., &c. whether in use or not.
Section 12 (1).-OF DUTIES IN QUARTERS, IN GARRISON, OR IN
Officers and Soldiers are to be orderly in their Quarters and on their
March. Penalty of Spoiling Property. Art.l.] (2) Allofficers, non-com, officers, and soldiers, are to behave themselves orderly in quarters and on their march, and whoever shall commit any waste or spoil either in walks of trees, parks, warrens, fishponds, houses, or gardens, corn-fields, enclosures or meadows, or shall maliciously destroy any property whatsoever belonging to any of our subjects or other persons entitled to our protection, or to the protection of the E.I. Co., he or they that shall be found guilty of offending herein, shall (besides such penalties as they are liable to by law) be punished according to the nature and degree of the offence, by the judgment of a gen. or regtl. ct.-mar.
1. Behave orderly in Quarters and on their March.) “ It is, at all times, most desirable, that an army whilst marching through a foreign territory, and much more through its own country, or that of any ally, should conciliate the people by its peaceable demeanor, and render the progress through it as little inconvenient or prejudicial to the inhabitants as possible. The same is also to be required of its conduct during its temporary sojournment in quarters, garrison, or cantonment (3).” In respect to the destruction of general property, there is an exception in favour of those who may destroy it by the order of the Com. in chief of H. M.'s forces, “to annoy rebels, or other enemies in arms against the king (4), i. e. during the period of civil or public war” (5). The intention of the article is to prevent the malicious destruction of any property whatsoever belonging to any of H. M.'s or the E. I. Co.'s subjects, or of those entitled to their protection (6). But, when troops are on service, whether in the territories of any ally or those of the Co.'s, circumstances may arise to occasion an injury to be done to cultivated fields—such as the encamping upon them and the like, and, in extreme cases, to destroy them, for which the necessity of the case will be a sufficient plea; and in either of such cases, the injury is repaired by payment of a sum of money, or a deduction from the fixed or assessed revenue, in
cases (1) Ann. Arts. of War, 14th. (2) Sec. xi, art. 16, Arts. of War, for Bengal Native Troops. (3) Samuel on the Arts, of War, p. 539. (4) Ann. Arts of War, sec. xiv, art. 1. (5) Samuel on the Arts. of War, p. 541. (6) See notes 9 and 10, sec. ix, art. 1.