unless there be a showing to the effect that he is not in fact the accuser in the case he must be regarded as disqualified under the statute from sitting as a member of the court for the trial of the case; and in the absence of such a showing he should be excused from further service as a member of the court when the charge bearing his signature is laid before the court.

"7. If, when the charge is laid before the court, a showing be made to the satisfaction of the court that the preferring of the charge by the officer signing the same was an act purely ministerial in character, performed in pursuance of orders from superior authority and representing no initiative or conviction on the part of the officer so signing, I think the court may find that the officer is not in fact the accuser within the meaning of the statute and therefore is not disqualified under the statute from sitting as a member of the court for the trial of the case. In such a case, however, the fact that evidence touching the eligibility of the officer was heard by the court, and the finding arrived at by the court, should be made of record.

"8. In the absence of the showing, finding and record mentioned in the preceding paragraph, the fact that the officer whose name is signed to the charge sat as a member of the trial court must be regarded as invalidating the proceedings. In general we can look only to the record itself to determine the validity of the proceedings. The record of the case which in the broadest sense must be held to include the original charge, shows that the officer who signed the charge sat as a member of the trial court."

To the same effect is an opinion of this office under date of February 28, 1914, and the earlier opinions of October 11, 1913, and November 13, 1913.

In the opinion of this office, Captain Hardie was ineligible to sit as a member and the proceedings are invalid.

3. Your second question must be answered in the negative. Captain Hardie sat as a member of the Court. Prima facie, he was ineligible to sit and the proceedings are invalid. The question of the eligibility of Captain Hardie should have been tried and disposed of before arraignment and the organization of the Court. On the face of the record, the Court was never lawfully constituted, and it would not be lawful for it now to reconvene to take evidence upon and to investigate the legality of its own existence.

4. The proceedings should be set aside as null and void and the charges referred to another Court for trial.

[Signed] S. T. Ansell, Acting Judge Advocate General.

10. JURISDICTION OF MILITARY POLICE OVER CIVILIANS

Army II F.

From: The Office of the Judge Advocate General.

March 21, 1918.

To: The Judge Advocate, 88th Division, Camp Dodge, Iowa. Subject: Opinion of March 6, 1918, with reference to cooperation of Military Police with civil authorities.

1. In your memorandum for the Chief of Staff of the 88th Division, you reach the following conclusion:

"(a) It is the opinion of this office, however, that within the limits of the five mile zone, civilians who violate the regulations promulgated by the President and the Secretary of War, may be properly apprehended by the Military Police for violations of sections 12 and 13 of the Act of May 18th, and that having been so apprehended they should at once be turned over to the civil authorities. This office bases its opinion that such arrests and apprehensions may be properly made by the Military Police, upon the provisions of the law which authorize the President and Secretary of War to make regulations prescribing zones which shall be, in a qualified sense, under military control as to alcoholic liquors and prostitution; and the fact that such regulations have been made and promulgated by the President and Secretary of War under the provisions of the law and are now in force. This power, however, does not go to the searching of houses or buildings, nor seizure of property held for unlawful purposes, although it would seem that such power, for the purpose of efficient service, might well have been included."

"(b) Upon the other branch of the inquiry, however, the use of the Military Police outside the five mile zone, this office is unable to find any authority which either expressly or by implication, authorizes the Military Police to make arrests of civilians, or to act either independently or in aid of civil authorities in so far as the activities of civilians are concerned."

2. As to paragraph (a) above quoted, the Judge Advocate General does not concur. So far as the jurisdiction of the military authorities over civilians is concerned, there is no distinction between the proscribed zone and elsewhere. As to paragraph (b), your conclusion is approved, except in so far as you restrict it to territory outside the proscribed zone. The military authorities have no power to order the Military Police or any other part of the Army, as such, to assist the civil authorities in the execution of the law, except when called upon in the manner provided for in the Constitution of the United States and the Acts of Congress. 20 Stat. 152; U. S. Comp. St. 1916, § 1992. Some of the language used in your opinion, while correct as applied to the particular cases before you, is entirely too broad as a statement of general principles. Of course, what is here said does not contemplate the situation where, under the well-known. conditions, military power may by proper authority be exercised in aid of the Federal civil power.

[Signed] S. T. Ansell, Acting Judge Advocate General.

11.

PENITENTIARY SENTENCE FOR CIVIL OFFENSES

Discipline XVII A 4h.

March 27, 1918.

From: The Office of the Judge Advocate General. To: The Judge Advocate, 90th Division, Camp Travis, Texas. Subject: Construction of the provisions of the 42d Article of War regarding place of confinement upon conviction for civil offenses.

1. In your communication of March 22d, concerning the case of Jim Doddles, Private, Company A, 513th Engineers, you argue to and submit some citations in support of the conclusion

"That in case an offense has been committed which is not recognizable under the Federal Statutes the law in the state where the offense was committed is applicable."

The old 97th Article of War read:

"No person in the military service shall, under the sentence of a court-martial, be punished by confinement in a penitentiary, unless the offense of which he may be convicted would, by some statute of the United States, or by some statute of the State, Territory, or District in which such offense may be committed, or by the common law as the same exists in such State, Territory, or District, subject such convict to such punishment."

The 42d Article of War, as contained in the Act of August 29, 1916 (39 Stat. 650-670 [Comp. St. 1916, § 2308a]), so far as material here reads:

"Except for desertion in time of war, repeated desertion in time. of peace, and mutiny, no person shall under the sentence of a courtmartial be punished by confinement in a penitentiary unless an act or omission of which he is convicted is recognized as an offense of a civil nature by some statute of the United States, or at the common law as the same exists in the District of Columbia," etc.

2. It will be observed that in the Article as adopted in 1916 there is omitted all reference to the statutes or the common law of the various states and territories. Because of this change in the language this office, in construing the 42d Article of War, has held that, to authorize confinement in a penitentiary, the act or omission of which a soldier is convicted must be recognized as an offense of a civil nature by some statute of the United States, that is, some statute enacted by Congress defining the offense and prescribing the punishment therefor, or by common law as the same exists in the District of Columbia, or by way of commutation of a death sentence.

3. Subdivision (c), class 3, paragraph 338, Manual for Courts-Martial, 1917, was evidently based upon the provisions of the old 97th Article of War, and should be disregarded.

[Signed] S. T. Ansell, Acting Judge Advocate General.

12.

CHARGE LAID UNDER WRONG A. W.

March 30, 1918.

Discipline II D 4, XIV E 7.

From: The Office of the Judge Advocate General.

To: The Judge Advocate, Port of Embarkation, Hoboken, New Jersey.

Subject: Certain summary court proceedings.

1. In your communication of March 22, 1918, you state that a soldier was tried before a summary court upon two specifications laid under the 61st Article of War (Comp. St. 1916, § 2308a)-one alleging breach of arrest which should have been laid under the 69th Article of War, and one alleging violation of standing orders, which should have been laid under the 96th Article of War. You inquire(a) Are the proceedings void, and (b) can the soldier be retried upon charges laid under the 69th and 96th Articles of War?

2. It is assumed from what is contained in your communication that the first specification sufficiently alleged the offense of breach of arrest and that the second specification properly alleged the offense of a violation of standing orders. That is, in each specification all of the elements of the offense were set out and the accused fully advised of the nature of the charge against him. The punishment which may be imposed for an offense constituting a violation of the 61st Article of War is in the discretion of the court. The same is true of an offense charged as a violation of the 69th Article and of an offense charged as a violation of the 96th Article. Neither of these Articles prescribe a mandatory punishment. The character and degree of the punishment to be imposed, whether laid under the one or the other, is in the discretion of the court, and is to be determined from the nature and gravity of the offense as disclosed by the facts alleged in the specification.

A different situation would be presented if a specification charged an offense under some Article which prescribed a mandatory punishment or which authorized the death penalty and it was laid under an Article which authorized such punishment as a court-martial might direct. In such a case it might well be said that the substantial rights of the accused were endangered or prejudiced, for the obvious reason that the Article under which the specification was laid might very well lead him to believe that he was called upon to meet and prepare himself to meet a charge where, upon conviction, the punishment would be within the discretion of the court-martial and less than death, and it might be insisted after the trial that the facts required a mandatory sentence or authorized the imposition of the death penalty. In the present case no such situation is presented. Furthermore, it does not appear that the accused is seeking to have the proceedings set aside or that he seeks a re-trial upon the same facts upon which he was tried and convicted laid under other Articles.

3. It is the opinion of this office that the proceedings are not void, that the sentence may be lawfully carried into effect and that the ac

cused may not be lawfully retried upon identical charges upon which he had been tried laid under the 69th and 96th Articles of War.

[Signed] James J. Mayes, Acting Judge Advocate General.

13. CONVICTION BY SUMMARY COURT FOR an Offense BEYOND ITS JURISDICTION

Discipline XVI.

From: The Office of the Judge Advocate General.

March 30, 1918.

To: The Judge Advocate, Port of Embarkation, Newport News, Vir

ginia.

Subject: Certain summary court proceedings.

1. In your communication of March 22d, you state that a soldier was tried before a summary court for

(a) Violation of the 61st Article of War [Comp. St. 1916, § 2308a], with an appropriate specification.

(b) Violation of the 63d Article of War, with a specification alleging an offense which should have been laid under the 64th Article of War -willful disobedience of the order of a superior officer.

(c) Violation of the 96th Article of War, with an appropriate specification.

(d) Violation of the 84th Article of War, with an appropriate specification.

You further state that the accused was found guilty of all the charges and specifications and sentenced to be confined at hard labor for two months and to forfeit two-thirds of his pay per month for a like period.

The specification under the 63d Article of War set up a capital offense which the summary court had no jurisdiction to try, and you inquire

(a) Are the whole proceedings void, and (b) can the soldier be again tried for these same offenses before a proper court upon proper charges?

2. The summary court had authority to try the offenses laid under the 61st, 84th and 96th Articles of War. As to the offenses laid under these charges the court had jurisdiction, hence the proceedings are not void. True, the sentence imposed included punishment for an offense not within the jurisdiction of the court, but the legal effect upon the validity of the judgment would not be different than if the court had found the accused guilty of four charges and specifications and pronounced one sentence thereon by way of punishment, and the reviewing authority had disapproved the findings as to one or more of the charges and specifications, the proper practice in such a case is to make proper mitigation of the sentence imposed.

3. The offense of willful disobedience of the orders of a superior officer, not being within the jurisdiction of the summary court, the proceedings and sentence of the court thereon are void and constitute no bar to a prosecution before a court having jurisdiction.

[Signed] E. H. Crowder, Judge Advocate General.