Case of

Dunkin,

such facts; though stripped of the special imputation charged. In support of this opinion, many cases might be quoted, but the following is selected, because the sentence was confirmed by his majesty; and in it the accused is expressly acquitted of scandalous and infamous conduct, unbecoming the character of an officer and a gentleman, with which he had been pointedly and exclusively (so far as the imputation built on the facts extends) charged; and yet, being found guilty of committing certain acts, (set forth as the grounds of imputation charged,) evidently tending to the prejudice of good order and military discipline, the prisoner is punished Lieut. Thomas accordingly. At a general court martial held at Lisbon, on the 19th June, 1810, and continued by adjournments to the 21st of the same month, lieutenant Thomas Dunkin, of the 4th dragoons, was arraigned for "scandalous and infamous conduct, unbecoming the character of an officer and a gentleman, while in command of a detachment of the 4th dragoons, in the Anacreon transport, on the passage from Portsmouth to Lisbon, by making use of highly improper language to, and striking, hospital mate Daniel Maguin, an officer under his command, on or about the 7th March, 1810; and also in fighting with, and making use of improper language to, the said hospital mate Maguin, on the deck of the Anacreon transport, on or about the 21st March last." The prisoner was also tried on a second charge, which it is not necessary to detail. "The court, having maturely and deliberately weighed and considered the evidence adduced in support of

Charge,

Opinion,

the prosecution against the prisoner, lieuteuant Thomas Dunkin, of the 4th dragoons, together with what he alleged in his defence, and the evidence thereon, was of opinion that he was guilty of the first part of the first charge preferred against him, in as far as making use of highly improper language to, and striking hospital mate Maguin, an officer under his command, on or about the 7th of March, 1810, being in breach of the articles of war, and by virtue thereof sentenced him, the prisoner, Sentence, lieutenant Thomas Dunkin, of the 4th dragoons, to be suspended from rank and pay for the space of six calendar months; but the court, in consideration of the grossly insulting language made use of by hospital mate Maguin to the prisoner, acquitted him of scandalous, infamous conduct, unbecoming the character of an officer and a gentleman." The court was of opinion, that the prisoner was not guilty of the second part of the first charge, nor of the second charge preferred against him. The confirmation of the sentence was conveyed in the following terms: "His majesty has been pleased to con- Confirmation. firm the opinion and sentence of the court; but, in consideration of all the circumstances of the prisoner's conduct, as they appear on the face of the proceedings, his majesty has been pleased to command that it shall be intimated to lieutenant Dunkin, that his majesty has no further occasion for his service."1

disgraceful

A soldier charged with disgraceful conduct on a charge of may, in like manner, be acquitted of the imputation; and if found guilty of the facts charged,

(1) G. O. No. 186. On this subject, refer also to page 155.

conduct, facts found.

thrown out,

Variance in time.

Specific Anding

such being to the prejudice of good order and military discipline, may be punished accordingly.

It depends on the maxim, "It is sufficient to prove the substance of the issue," that it is not held generally necessary to prove the time precisely as laid, unless that particular time be material.1 This is the constant course of proceeding in criminal prosecutions, from the highest offence to the lowest. In high treason, evidence may be given of an overt act, either before or after the day specified in the indictment; the particular day is not material in point of proof, and is merely matter of form. Courts martial have commonly acted on this principle: on the trial of lieutenant colonel Alen, the court in their sentence, made the following remark, which, as part of the proceedings, was approved by his majesty: "The court have not taken into consideration the circumstance of the order of the 30th January," (the order, with the infraction of which the lieutenant colonel was charged,) having been inserted in the third charge, instead of the 31st of that month, the mistake appearing to have been merely a clerical one.”3

In the case of a soldier, who was tried for having deserted on the 19th Oct., 1833, when in fact he had deserted on the 19th October of the preceding year, but was still in a state of deser

(1) The 7 Geo. 4. c. 64. sec. 20, declares that no judgment or any indictment or information, for any felony or misdemeanor, shall be stayed or reversed, for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence; nor for stating the time imperfectly; nor for stating the offence to have been committed on a day subsequent to the finding of the indictment or exhibiting the information; or on an impossible day; or on a day that never happened.

(2) 1 Phil. 229

(3) G. O. No. 425. A breach of the order, improperly charged as to date, was the subject of the charge.

tion on the date mentioned in the charge, the court was recommended by the then judge advocate general1 to come to a specific finding, stating the facts which appeared in evidence as above detailed, and to find the prisoner guilty of the charge, with the exception of so much of it, as imported that he deserted on or about the particular date mentioned.

a date has been incorrectly stated.

It would appear that this specific finding is in necessary where strictness essential to the execution of the sentence, and should in no case be omitted when a date has been inaccurately stated.2

place,

to, affected by

recent alteration

of mutiny act;

An alteration, first appearing in the mutiny Variance in act of 1834, considerably affects the practice of custom relative courts martial, as to evidence of place. It is now declared that "any person subject to the mutiny act who shall, in any of his majesty's dominions or elsewhere, commit any of the offences for which he may be liable to be tried by courts martial, may be tried and punished for the same in any part of his majesty's dominions where he may have come after the commission of the offence, as ifthe offence had been committed where such trial shall take place." The mistake of the place in which an offence may have been charged to have been perpetrated, was never conclusive,

(1) Mr. Judge Advocate General, Robert Grant.-Letter dated 9th January, 1834.

(2) The Judge Advocate General, remarked upon the case of a soldier of the Scots Fusilier Guards, who was proved (February 1833) to have committed the offence laid to his charge, but not upon the day specified. "It was perfectly competent to the court to find the prisoner guilty under the charge so framed, although the offence was proved to have occurred on a different day, but that in such case, it was in strictness the duty of the court to specify in their finding on what day the offence took place. As the court in this instance stated the offence had not occurred on the day mentioned, the Judge Advocate General recommended the sentence should not be confirmed.

(3) Mut. Act, Sec. 5.

if the fact were proved at some other place within the precincts of the command of the officer convening the court martial. This custom was in perfect unison with the long established custom of the common criminal courts. "A mistake of a place in which an offence is laid, will not be material upon the evidence in not guilty pleaded, if the fact be proved at some other place in the same county." Formerly the warrant addressed to officers in command, empowering them to convene courts martial, was restricted to the limits of their commands; the mutiny act also created the same limitation. His majesty was empowered to grant his royal commissions or warrants to superior officers, both abroad and at home, for "convening, as well as for authorizing any officer under their respective command, not below the degree of a field officer, to convene courts martial, as occasion may require, for the trial of offences committed by any of the forces under their several command, whether the same shall have been committed before or after such officer shall have taken upon himself such command:" no officer or soldier could, therefore, be tried by a court martial for any offence committed beyond the limits of the command of the officer convening it, except by special warrant from his majesty: and here the analogy between a commission of gaol-delivery extending to the county, and the warrant extending to the command, was complete. And, from the custom of criminal courts in like cases, it was assumed that, although the offence must be proved to