Specification of time and place. Names to be in length, and number of soldier added. Offenders may be charged collectively. Thus, every material fact which is issuable and triable must be averred to have happened at a certain time and place, is a rule in pleading, the observance of which, in wording charges, is highly desirable, and, where time is essential, indispensable. Dates should be in words, not in figures if the offence be done in the night, before midnight, it is understood to be done in the day before; and if it happen after midnight, then in the day after. At or about a certain hour, and on or about are frequently used; but no precise length of time is comprised in these terms. A degree of latitude depending on the nature of the offence is, in certain cases,' necessarily allowed, and particularly where the time of committing the act charged is not the essence of the offence. Names should be at full length, rank and regiment or staff employ correctly stated, and, in framing charges against either non-commissioned officers or soldiers, the prisoner's regimental number is invariably to be inserted." 3 Before a court martial, as in a court of civil judicature, several offenders who commit the same offence, though in law they are several offences in relation to the several offenders, yet they may be joined in one charge. And as to mutiny, sedition, riot, and offences of a similar type, prisoners may be collectively charged for offences arising out of the same act, design, or omission, and having been separately arraigned, may be tried together by the same court martial. (1) See Special finding. Index. (2) Gen. Reg. p 245. (5) See Gen. Reg. 244. not included in The practice of courts martial differs from that Distinct offences of civil courts, inasmuch as a prisoner may be the same charge. placed on his trial, at the same time, for several offences of distinct natures. It is however desirable that facts of a distinct nature should be specified as distinct instances or in separate counts, and not blended in the same charge. Offence need air not be charged particular Article of War, cognizable by some. It is not necessary that a charge should be couched in the terms of any appropriate article of war, nor to state that the crime charged is in breach of any particular one, unless it be desired to induce the special punishment declared by such article. It is, however, necessary that the but must be crime, as laid, should be clearly cognizable by some or other of the articles of war, provision of the mutiny act, or other statute referring to the jurisdiction of courts martial; and no court martial ought to proceed to trial until they have satisfied themselves of their competence to entertain the charge. must be referred special punish It has just been remarked, that it is not neces- Article or clause sary a charge should be couched in the terms of to, to induce a any particular article of war, unless it be desired ment. to induce the special punishment declared by such article; when this is the case, it is however indispensably necessary; to elucidate which, it may be observed, that an officer guilty of embezzlement, or misapplication of money or stores, &c., could not be visited by the punishment of transportation, (which, as respects an officer, is peculiar to that offence,) unless charged in some or other of the express terms of the clause which prescribes the penalty. A soldier named Riley, of captain Thomas Power's company, of the 5th royal veteran battalion, was arraigned in 1809, Case of offering For having on the 6th of January, at the island violence to su perior; of desertion; of disgraceful conduct; of habitual drunkenness. of Alderney, threatened to take away the life of the said captain Thomas Power, and for attempting to do so with a drawn bayonet which he held in his hand;" of which charge the court found the prisoner guilty, and sentenced him to death. The sentence was revised in consequence of a communication from the judge advocate general, (Mr. Ryder,) who thus expressed himself: "It appears to me that in applying the punishment of death, the court misapprehended the charge against the prisoner, which, as it does not contain any allegation that captain Power was in the execution of his office at the time the prisoner made the attack upon him, does not come within the fifth article of the second section of the articles of war,' and is not of a capital nature.' So likewise, a soldier guilty of desertion could not be obnoxious to any of the punishments peculiar to that offence, if charged with absenting himself without leave. Neither could a soldier be visited with the penalties peculiar to "disgraceful conduct," unless such conduct were laid in the charge, or3 unless some of those definite crimes which are recited in the ninth clause of the mutiny act and seventy-seventh article of war, were specifically alleged, though the facts proved shew that the imputation might have been correctly laid. The same remark may be made as to the offence of "habitual drunkenness:" though it appear in evidence that the prisoner had been drunk such a number (1) Now the 11th Art. War. (2) G. O. 12th May, 1809. (3) See Circular explaining when soldiers who maim themselves ought not to be put on their trial for disgraceful conduct.-Horse Guards, 30th November, 1836. Addenda, Gen. Reg. p. 21. of times as might establish this charge, yet, if not imputed in the crime, he could not be visited by the punishment peculiar to it. Did not experience point to the necessity of these remarks, they might have been spared, as the author is perfectly aware that they may be reduced to the concise axiom: A man tried for one crime, cannot be found guilty, or receive judgment on another. Although military charges are not necessarily framed with the precision which is essential to an indictment, yet, in this particular, that is, where special and extraordinary punishments, such as are not generally applicable to military offences, are in question, the practice of courts martial comes very near that of civil courts of justice; "an indictment grounded upon an offence, made by act of parliament, must, by express words, bring the offence within the substantial description made in the act of parliament; and those circumstances, mentioned in the statute to make up the offence, shall not be supplied by the general conclusion against the form of the statute." As courts martial professedly discard mere technical formalities, it is, as before observed, the more necessary to distinguish where form is essential to justice, and in this view, if in the practice of courts martial the spirit of the form of civil courts of judicature can, in any case, be seized without entailing the necessity of adherence to the subtile distinctions made by lawyers, a great point will be gained : and it must be under this restriction that precedents in the practice of civil courts of justice may be sought for, or admitted. (1) 2 Hale, 170. Charges depending on imputa. tion: Scandalous, infamous conduct; facts to be stated, There are two offences depending on imputation, on which it may be necessary in this place to offer a few remarks, though they will be recurred to in the course of that which follows: scandalous and infamous conduct in an officer, and disgraceful conduct in a soldier. Many of the observations which will be offered, would in a great degree apply on a charge of mutiny, or contempt, or disrespect, to a superior officer; as, in either case, the offence depends on the imputation which may attach to facts: it is, therefore, necessary that the facts should be specially set forth in the charge. The articles of war formerly enjoined, that in every charge preferred against an officer, for behaving in a scandalous, infamous manner, such as is unbecoming the character of an officer and a gentleman, the fact or facts whereon the same is grounded should be clearly specified.' This provision has been very highly lauded by most writers on martial law. Mr. Tytler terms it "a wise and equitable clause ;"'* it is, however, now omitted; but it is conceived that its omission ought not to induce a neglect of the precept comprised by it, as abstract justice requires that the accused should be apprized of the matter intended to be brought against him: this truth is so evident, that probably it has afforded the very reason which has led to the alteration in the wording of the article. His late majesty's sentiments on the subject are very fully developed in the order which was issued on the promulgation of the sentence of a court martial on ensign James Imlach, of the 3rd West India general order; regiment, who was tried upon a charge of "un necessity of, enforced by a (1) Old Art. War, Sec. xvi. Art. xxx. (2) Tytler, 216. |