So construed, the Article must be held as applicable only to cases of breach of arrest or confinement while awaiting trial, leaving to be preferred under the General Article, as indeed, has always been the case heretofore, specifications alleging breach of or escape from confinement while undergoing sentence.

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

17. MILITARY PERSONS PURCHASING LIQUOR

June 21, 1918.

From: The Office of the Judge Advocate General.
To: Malcolm L. McBride, Acting Chairman, Commission on Train-
ing Camp Activities. 19th & G Streets. N. W.. Washington,
D. C.

Subject: Prosecutions of commissioned officer and procurers of evidence for violation of liquor laws.

1. By the papers in reference it appears that you wish to ascertain (1) whether trials by courts-martial may be had of all officers shown to be accessories to the violation of liquor laws and regulations, (2) whether such proceedings may be brought against men in the military service who purchase, receive, or accept liquor, for the purpose of obtaining evidence for use in prosecutions. In connection therewith attention is called to the provisions of paragraph IV, G. O. 33, 1918, requiring commanding officers to direct a trial by court-martial of all soldiers shown to be accessories to the violation of liquor laws and regulations.

2. This office, in an opinion dated June 15, 1918, states:

"In the instant case, G. O. 33 creates no offense cognizable by a court-martial. Neither does it purport to do so. It only commands prosecution for acts which are offenses under the Articles of War. Its effect is to point out that persons subject to the Articles of War, who are accessories to the violation of section 12 of the Draft Act (40 Stat. 82) and the regulations made by the President thereunder, are guilty of a violation of the Articles of War and must be prosecuted accordingly. The direction is not new. It is only a repetition, in more positive form, of a former direction. In a circular issued by the Chief of Staff on Nov. 2, 1917, Commanding Officers were advised with reference to section 12 of the Draft Act as follows:

"For violation of the Act by persons not subject to military law, prosecution will be made by United States attorneys in the Federal Courts. For a violation of the Act by persons subject to military law, discipline will be administered by the military authorities either by trial by court-martial under Article of War 96 (Comp. St. 1916, § 2308a), or by other means usual in such cases.'

"Without either the direction of November 2nd, or the direction contained in G. O. 33, it is the duty of commanding officers to see to it that those guilty of violations of the Articles of War are properly disciplined. All persons subject to military law who are accessories to a violation of section 12 of the Selective Draft Act of May 18, 1917 (40 Stat. 76, 82), or of the regulations made by the President thereunder are guilty of a violation of the 96th Article of War. It

is therefore the duty of commanding officers to apply disciplinary measures to the offenders, and one disciplinary measure is to subject them to trial by court-martial. The, Commanding Officer of the Southern Department, therefore, would be acting within his powers and in accordance with his duties if, without reference to G. O. 33, he directed all officers of his command to subject to trial by courtmartial all persons subject to military law who were found to be violators of, or accessories to a violation of, section 12 of the Draft Act or regulations of the President made thereunder."

You are advised that commissioned officers, as well as non-commissioned officers and enlisted men, may be prosecuted in courts-martial proceedings for the violation of the liquor laws and regulations.

3. Answering the second question: The essential element in prosecutions against accessories is the malicious determination to violate the law. This is wanting when liquor is purchased, received, accepted, or had in possession for the purpose indicated in your inquiry. Again, it is inconceivable that when an officer, in the first instance, has asked a soldier to procure the evidence necessary to the conviction of a bootlegger, that such officer will ask for the conviction of the man acting under his order. But the rule of exemption from prosecution applies to those cases only where the officers or men are acting in good faith for the purpose of detecting or investigating crime. It does not apply to cases where the officer or soldier having purchased, received, accepted, or had liquor in possession, with intent to violate the liquor laws or regulations, afterwards attempts to evade responsibility there for by producing evidence in an effort to convict the bootlegger. I am of the opinion that General Order No. 33 does not direct court-martial proceedings to be instituted against members of the military police, officers or men, who have purchased, received, or accepted liquor from bootleggers, or have had it in their possession within prescribed zones, when such acts are performed for the purpose of obtaining evidence for use in the prosecution of bootleggers in the suppression of illegal liquor traffic.

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

18. SUMMARY COURT-POWER TO REDUCE RANK

7th Ind.

War Department, J. A. G. O., July 11, 1918.-To the Adjutant Gen

eral.

1. There is referred to this office for decision the question of the legality of the sentence of a summary court in the case of Sergeant Ira Swink, Quartermaster Corps, Fort McPherson, Georgia. It appears that Sergeant Swink was tried by summary court for absence without leave, found guilty, and sentenced "to be reduced to the grade of private first class and to forfeit two-thirds (2%) of his pay per month for a period of one (1) month." The case was referred, for opinion as to the legality of the sentence, to the department judge advocate, Southeastern Department, who said in part: "* * * The sentence is unquestionably illegal as it stands, but

it is possible that it may be construed in such a way that it need not be set aside as wholly void.

"That portion of the above sentence referring to the change of grade of this man may, it is thought, be regarded as including two elements, viz. a reduction to the grade of private, which is in effect. a reduction to the ranks, and appointment to the grade of private first class. Privates first class are under A. R. 278, appointments made from the ranks, and in order to be appointed private first class, an enlisted man must at the time be a private. Under this construction, the sentence involving the reduction of the accused may be regarded as being legal in part and illegal in part. The summary court was authorized to reduce the man to the ranks but had no power to make an appointment to the grade of private first class. * * *

"By adopting the construction suggested above the legal portion of this sentence, viz. the reduction of the man to the ranks, may be given full effect, and the illegal portion, viz. the attempted appointment to the grade of private first class, may be disregarded."

2. This office concurs in the opinion of the department judge advocate in so far as it holds the sentence to involve, in effect, a reduction to the ranks and an appointment to the grade of private first class, and to be, in the terms imposed, beyond the power of a summary court. The number of privates first class, in any organization is limited; their selection is made by the organization commander (A. R. 278). While such selection may technically constitute a mere classification, it is in effect an appointment; and obviously a courtmartial has no appointing power. This office does not, however, concur in that portion of the department judge advocate's opinion which holds that the sentence of reduction to private first class can be legally separated into reduction to private and appointment to a higher grade, so that the portion of the sentence reducing Sergeant Swink to private is valid. The portion of the sentence reducing Sergeant Swink in grade is inseparable; the legal and illegal elements of it are so interwoven that the whole must fall. Consequently only so much of the sentence as imposes a forfeiture of pay is valid. The remainder is invalid, and is ineffectual to change the grade of Sergeant Swink.

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

19. ERRORS IN COURT-MARTIAL RECORDS

(A)

July 17, 1918.

From: The Office of the Judge Advocate General.
To: The Judge Advocates [of Divisions, etc.].
Subject: Errors in trials by court-martial.

1. Attached hereto is (a) a compilation of errors committed or permitted to pass without comment in general court-martial records that were received in this office from your command, during the period between June 7, 1918, and July 7, 1918; (b) a list of errors committed or allowed to pass without comment in all of the commands exercising general court-martial jurisdiction for covering the same month. This

data is supplementary to similar data sent out from this office under date of June 24, 1918. If no compilation of errors, (a) above, is included herein, it may be assumed that no errors have been committed or allowed to pass without comment by you during the period covered. By direction of the Judge Advocate General:

H. M. Morrow, Lieutenant Colonel, Judge Advocate.

Executive Officer.

(b) List of Errors Committed or Allowed to Pass Without Comment in All of the Commands Exercising General Court-Martial Jurisdiction for the Month June 7, 1918, to July 7, 1918.

Nature of the Errors.

Accused not instructed as to his rights to testify or make a statement.
Improper instructions as to maximum penalty after plea of guilty.
Record of service not verified by the accused.

Place of confinement.

Improper designation of post.

Improper designation of Disciplinary Barracks.

Improper designation of penitentiary.

No citation of authority for designation of penitentiary as place of confinement.

Improper authority for designation of penitentiary as place of confinement. Disciplinary barracks designated as place of confinement in a case where penitentiary confinement is authorized, without a statement showing the reason therefor.

Place of confinement not designated.

Improper authentications.

Record not signed by senior member of the court sitting in the trial.
Failure of trial judge advocate to authenticate a record in revision.
Record not authenticated by president of court.

Action of reviewing authority not signed.

Orders convening and modifying the court not authenticated.

Omissions of data in the record as transmitted to the office of the Judge Advocate General.

Top fold of charge sheet missing.

No copies of general court-martial order.

No summary of evidence by the staff judge advocate in cases where such summary is required.

Exhibits missing.

All members of court, judge advocate and reporter not accounted for. Members of the court or judge advocate improperly excused from sessions of the court.

Improper evidence admitted.

Improperly obtained confession of accused.

Very large mass of hearsay testimony.

Affidavits admitted in capital case.

Evidence of bad character, where character not in issue.

Evidence of previous conviction in case of an officer.

Failure to include in the general court-martial order a reference to all orders creating and modifying the detail for the court.

Omission of the statement that a greater number of officers could not have been detailed to a general court without manifest injury to the service in cases where less than the maximum number was detailed.

Reporter, witness or judge advocate not sworn.

Record did not show affirmatively that accused was accorded full right of challenge.

Offense charged under the wrong Article of War.

Sentences in cases which should have been sent first to the office of the Judge Advocate General under G. O. No. 7, W. D., 1918, completely executed by the reviewing authority without observing G. O. No. 7.

Member of the court sat in a proceeding in revision, though not present at the original trial.

Variance as to the term of confinement between that recited in the general court-martial order and that recited in the action of the reviewing authority. Variance as to the finding on a specification between that recited in the record of trial and that recited in the general court-martial order.

Convening order omits the heading which shows the authority under which the court was convened.

Reviewing authority sets forth his approval of the proceedings in an officer's case in an indorsement to The Adjutant General of the Army instead of at the end of the record itself.

Record does not show affirmatively that accused was given an opportunity to cross-examine witness for the prosecution.

Incomplete and misleading synopsis of the evidence in the case made up by the staff judge advocate and sent to this office with the record.

Court refused to permit counsel for the accused to put on his voir dire a member of the court who was challenged.

Specification fails to state an offense.

Proceedings in revision interlined in the original record.

Finding of guilty of a specification charged under a certain Article of War, and not guilty of the Article of War itself.

Failure of reviewing authority affirmatively and by use of words “approved" or "disapproved" to approve or disapprove a sentence.

Record fails to show that sentence was imposed by the court.
Cross-examination of accused after an unsworn statement.
"Additional Charge" improperly designated as "Charge II."

Record in case of an officer tried by court appointed by division commander transmitted under the 51st instead of the 48th A. W.

Name of one of several accused omitted from list of accused.

Name of accused spelled differently in different places in the record.

Witness, when recalled to the stand, not cautioned he was still under oath.

From: The Office of the Judge Advocate General.
To: The Judge Advocates [of Divisions, etc.].
Subject: Errors in trial by general courts-martial.

1. Enclosed herewith is (a) a compilation of important errors committed or permitted to pass without comment in general court-martial records from your command that were reviewed in this office during the period between August 6, 1918, and September 14, 1918; (b) a list of the more common errors found in all of the general court-martial records from all of the commands exercising general court-martial jurisdiction, reviewed in this office during the same period of time. If no compilation of errors (a) above is included herein, it may be assumed that no errors have been committed or allowed to pass without comment by you during the period covered.

By direction of the Judge Advocate General:

Wm. S. Weeks, Lieutenant-Colonel, Judge Advocate,
Executive Officer.

*

(b) List of the More Common Errors Committed by Staff Judge Advocates or Allowed by Them to Pass without Comment in All Commands Exercising General Court-Martial Jurisdiction for the Period August 6 to September 14, 1918.

Nature of the Errors.

Accused not properly instructed as to his right to testify or make a statement. Improper or incomplete instructions as to the elements of the offense and maximum penalty after a plea of guilty.

MIL.L.-53