페이지 이미지
PDF
ePub

The provisions of this article shall be applicable to inmates of the United States Soldiers' Home who die in any United States military hospital outside of the District of Columbia where sent from the home for treatment. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 809); 10 U. S. C. 158).

Same as art. 112, Code of 1916, as amended by the acts of July 9, 1918 (40 Stat. 882) and Nov. 19, 1919 (41 Ştat. 356), except that the matter following the words "debts due decedent's estate by local debtors," down to and including the words "transactions to the War Department," is new. The phrase "place of command" is evidently an unintentional change from the phrase "place or command," as the article originally read in the Code of 1916. "Place of command" first appeared in the amendment of July 9, 1918.

471 (A. W. 113). Inquests.--When at any post, fort, camp, or other place garrisoned by the military forces of the United States and under the exclusive jurisdiction of the United States, any person shall have been found dead under circumstances which appear to require investigation, the commanding officer will designate and direct a summary court-martial to investigate the circumstances attending the death; and, for this purpose, such summary court-martial shall have power to summon witnesses and examine them upon oath or affirmation. He shall promptly transmit to the post or other commander a report of his investigation and of his findings as to the cause of the death. Soc. 1, Ch. 11, act of June 4, 1920 (41 Stat. 810); 10 U. S. C. 1585.

Same as in Code of 1916.

472 (A. W. 114). Authority to administer oaths.--Any judge advocate or acting judge advocate, the president of a general or special court-martial, any summary court-martial, the trial judge advocate or any assistant trial judge advocate of a general or special court-martial, the president or the recorder of a court of inquiry or of a military board, any officer designated to take a deposition, any officer detailed to conduct an investigation, and the adjutant of any command shall have power to administer oaths for the purposes of the administration of military justice and for other purposes of military administration; and in foreign places where the Army may be serving shall have the general powers of a notary public or of a consul of the United States in the administration of oaths, the execution and acknowledgment of legal instruments, the attestation of documents, and all other forms of notarial acts to be executed by persons subject to military law. Scc. 1, Ch. II, act of June 4, 1920 (41 Stat. 810); 10 U. S. C. 1586.

Same as in Code of 1916, except that the word “trial," is inserted before the words "judge advocate,” twice in the third line.

See also 1336, post.

It should be noted that the above provision does not permit the administration of an oath or affidavit for civil purposes, except in foreign places. If such authority exists in military officers, it must be derived elsewhere. For example, the current regulations relating to the income tax provide that “persons in the naval or military service of the United States may verify their return before any official authorized to administer oaths for the purposes of these services."

Powers similar to those conferred on officers of the Army by this section were conferred on officers of the Navy and Marine Corps authorized to administer oaths for the purposes of the administration of naval justice and for other purposes of naval administration when serving in places beyond the continental limits of the United States, by act of April 25, 1935 (49 Stat. 161).

473 (A. W. 115). Appointment of reporters and interpreters.-Under such regulations as the Secretary of War may from time to time prescribe, the president of a court-martial or military commission or a court of inquiry shall have power to appoint a reporter, who shall record the proceedings of, and testimony taken before, such court or commission and may set down the same, in the first instance, in shorthand. Under like regulations the president of a court-martial

[merged small][ocr errors]

or military commission, or court of inquiry, or a summary court, may appoint an interpreter, who shall interpret for the court or commission. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 810); 10 U. S. C. 1587. Same as in Code of 1916. The rate of pay for reporters, other than enlisted men, is not prescribed by statute, but is set forth in AR 35-4120; but for the statute regulating the rate of pay of enlisted men detailed as stenographic reporters, see 203, ante.

474 (A. W. 116). Powers of assistant trial judge advocate and of assistant defense counsel.--An assistant trial judge advocate of a general court-martial shall be competent to perform any duty devolved by law, regulation, or the custom of the service upon the trial judge advocate of the court. An assistant defense counsel shall be competent likewise to perform any duty devolved by law, regulation, or the custom of the service upon counsel for the accused. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 811); 10 U. S. C. 1588.

Same as art, 116, Code of 1916, except that the word "trial" is inserted before the Fords “judge advocate," and the last sentence is new.

475 (A. W. 117). Removal of civil suits.-- When any civil or criminal prosecution is commenced in any court of a State against any officer, soldier, or other person in the military service of the United States on account of any act done under color of his office or status, or in respect to which he claims any right, title, or authority under any law of the United States respecting the military forces thereof, or under the law of war, such suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the district court of the United States in the district where the same is pending in the manner prescribed in section 33 of the Act entitled "An Act to codify, revise, and amend the laws relating to the judiciary,” approved March 3, 1911, and the cause shall thereupon be entered on the docket of said district court and shall proceed therein as if the cause had been originally commenced in said district court and the same proceedings had been taken in such suit or prosecution in said district court as shall have been had therein in said State court prior to its removal, and said district court shall have full power to hear and determine said cause. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 811); 10 U. 8. C. 1589. Same as in Code of 1916.

476 (A. W. 118). Officers, separation from service.--No officer shall be discharged or dismissed from the service except by order of the President or by sentence of a general court-martial; and in time of peace no officer shall be dismissed except in pursuance of the sentence of a general court-martial or in mitigation thereof; but the President may at any time drop from the roils of the Army any officer who has been absent from duty three months without leave or who has been absent in confinement in a prison or penitentiary for three months after final conviction by a court of competent jurisdiction. Sec. 1, Ch. II, act of June 4, 1929 (41 Stat. 811); 10 U.S. O. 1590.

Same as in Code of 1916, except that the word “general” is inserted in the fourth line before the word "court-martial." The President was authorized to drop from the rolls of the Army for desertion any officer absent from duty three months without leave, etc., by R. S. 1229, and to drop from the rolls of the Army any officer absent from duty three months without leave or absent in confinement in a prison or penitentiary for more than three months after final conviction by a civil court of competent jurisdiction, by act of Jan. 19, 1911 (36 Stat.

894).

Officers dismissed by sentence of a general court-martial formally approved cannot he restored to the service except by reappointment. R. S. 1228, ante, 311.

For right of an officer dismissed by the President to demand a trial, and effect of fallure to convene a court-martial, see R. S. 1230, ante, 227.

For removal of disabilities incurred by reason of a pending charge of desertion, by Feason of subsequent honorable service in the World War, see 155, ante.

Notes of Decisions

Conviction by civil court.--Achiet ma- | April 2, 1918 (40 Stat. 501), and consechinist in the U. S. Navy was convicted by a quently may be dropped from the rolls of the Federal court of certain offenses against the Navy by the President. (1930) 36 Op. Atty. United States and was sentenced to pay a Gen. 186. fine of $1,000 and be imprisoned in a Federal Effect of not carrying name in omncial penitentiary for a period of 18 months. The register.--A Navy court-martial has jurisexecution of his sentence of imprisonment diction to try a naval officer, regardless of was suspended under the Probation Act of the fact that his name had not been carried March 4, 1925 (43 Stat. 1259), and he took in the official register after his desertion. no steps during the term at which his sen- Affirmative action of the President in droptence was imposed to alter or set it aside. ping him from the rolls cannot be inferred Held, that he has been "finally sentenced to from mere fact that his name was so omitted. confinement in a

• Federal peni. Ex parte Smith (D. C., 1931), 47 F. (20) tentiary within the meaning of the Act of 257.

477 (A. W. 119). Rank and precedence among Regulars, Militia, and Volunteers.---That in time of war or public danger, when two or more officers of the same grade are on duty in the same eld, department, or command, or of organizations thereof, the President may assign the command of the forces of such field, department, or command, or of any organization thereof, without regard to seniority of rank in the same grade. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 811); 10 U. 8. C. 1591.

Same as first sentence of art. 119, Code of 1916. The omitted portion read as follows:

"In the absence of such assignment by the President, officers of the same grade shall rank and have precedence in the following order, without regard to date of rank or commission as between officers of different classes, namely: First, officers of the Regular Army and officers of the Marine Corps detached for service with the Army by order of the President; second, officers of forces drafted or called into service of the United States; and, third, officers of the volunteer forces : Provided, That officers of the Regular Army bolding commissions in forces drafted or called into the service of the United States or in the volunteer forces shall rank and have precedence under said commissions as if they were commissions in the Regular Army; the rank of officers of the Regular Army under commissions in the National Guard as such shall not, for the purposes of this article, be held to antedate the acceptance of such officers into the service of the United States under said commissions."

478 (A. W. 120). Command when different corps or commands happen to join.-When different corps or commands of the military forces of the United States happen to join or do duty together, the officer highest in rank of the line of the Regular Army, Marine Corps, forces drafted or called into the service of the United States, or Volunteers, there on duty, shall, subject to the provisions of the last preceding article, command the whole and give orders for what is needful in the service, unless otherwise directed by the President. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 811); 10 U. S. C. 1592.

Same as in Code of 1916.

479 (A. W. 121). Complaints of wrongs.--Any officer or soldier who believes himself wronged by his commanding officer, and, upon due application to such commander, is refused redress, may complain to the general commanding in the locality where the officer against whom the complaint is made is stationed. The general shall examine into said complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, transmit to the Department of War a true statement of such complaint, with the proceedings had thereon. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 811); 10 U. 8. C. 1593.

Same as in Code of 1916.

CHAPTER 4

USE OF THE ARMY

[ocr errors]

Execution of laws, 480.

Protection : Execution of process, 481.

Of discoverers of guano islands, 495.
Suppression of violence :

Of persons extradited, 496.
Hawaii, 482.

Of national parks in California, 497.
Philippines, 483.

or Yellowstone National Park, 498.
Puerto Rico, 484.

Of timber in Florida, 499.
Virgin Islands, 484a.

Removal of unlawful inclosure of public lands, Enforcement of neutrality, 485.

500. Indian country:

Removal of unauthorized persons from ceded Removal of settlers, 488.

lands, 501.
Suppression of liquor trafic, 490.

Suppression of insurrection :
Collection of customs, 491,

Against a State, 502.
Control of vessels in ports of United States, Against the United States, 503.
492.

Enforcement of constitutional rights, privi. Prevention of illegal export of arms, 493.

leges, and immunities, 504. Prevention of peonage, 494.

Proclamation by the President, 505. 480. Execution of laws.-From and after the passage of this Act it shall not be lawful to employ part of the Army of the United States as

a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by Act of Congress; and any person wilfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years, or by both such fine and imprisonment. Sec. 15, act of June 18, 1878 (20 Stat. 152); 10 0. 8. C. 15.

An act entitled "An Act to define and punish crimes in the District of Alaska and to provide a code of criminal procedure for the District,” approved March third, eighteen hundred and ninety-nine, be, and is, amended by adding to section three hundred and sixty-three thereof the following: “Provided, section fifteen of an Act entitled 'An Act making appropriations for the support of the Army for the fiscal year ending June thirtieth, eighteen hundred and seventy-nine, and for other purposes,' approved June eighteenth, eighteen hundred and seventyeight, shall not be construed to apply to the District of Alaska";

Sec. 165, act of Mar. 3, 1899 (30 Stat. 1325); sec. 29, act of June 6, 1900 (31 Stat. 330).

A provision of this section, that no money appropriated by the act should be used to pay any expenses incurred in the employment of any troops in violation of the section, is omitted here, as temporary.

481. Execution of process. The commissioners authorized to be appointed by the preceding section are empowered, within their respective counties, to appoint, in writing, under their hands, one or more suitable persons, from time to time, who shall execute all such warrants or other process as the commissioners may issue in the lawful performance of their duties, and the persons so appointed shall have authority to summon and call to their aid the bystanders or posse comitatus of the proper county, or such portion of the land or naval forces

136307-40- -14

of the United States, or of the militia, as may be necessary to the performance of the duty with which they are charged ; and such warrants shall run and be executed anywhere in the State or Territory within which they are issued. R. S. 1984; 8 U. S. C. 50.

It shall be lawful for the President of the United States, or such person as he may empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia, as may be necessary to aid in the execution of judicial process issued under any of the preceding provisions, or as shall be necessary to prevent the violation and enforce the due execution of the provisions of this Title. R. S. 1989; 8 U. 8. C. 55.

The "Title" in question is entitled “Civil Rights.”

Section 1983 of the Revised Statutes provides for the appointment by United States courts of commissioners, with authority to arrest and examine persons charged with offenses against civil rights.

The Army is not to be used, as a posse comitatus or otherwise, for the purpose of executing the laws, except as expressly authorized by the Constitution or by act of Congress, by sec. 15, act of June 18, 1878, 480, ante.

Obstructing the execution of process issued under the provisions of this section and the section next following was made punishable by R. S. 5516, incorporated in sec. 141, Criminal Code.

482. Suppression of violence; Hawaii.--That the governor shall be responsible for the faithful execution of the laws of the United States and of the Territory of Hawaii within the said Territory, and whenever it becomes necessary he may call upon the commanders of the military and naval forces of the United States in the Territory of Hawaii, or summon the posse comitatus, or call out the militia of the Territory to prevent or suppress lawless violence, invasion, insurrection, or rebellion in said Territory, and he may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privilege of the writ of habeas corpus, or place the Territory, or any part thereof, under martial law until communication can be had with the President and his decision thereon made known. Sec. 67, act of April 30, 1900 (31 Stat. 153); 18 U. S. C. 532.

483. Suppression of violence; Philippines.—That the governor general shall be responsible for tlie faithful execution of the laws of the Philippine Islands and of the United States operative within the Philippine Islands, and whenever it bécomes necessary he may call upon the commanders of the military and naval forces of the United States in the islands, or summon the posse comitatus, or call out the militia or other locally created armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion; and he may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privileges of the writ of habeas corpus, or place the islands, or any part thereof, under martial law: Provided, That whenever the Governor General shall exercise this authority, lie shall at once notify the President of the United States thereof, together with the attending facts and circumstances, and the President shall have power to modify or vacate the action of the Governor General.

Sec. 21, act August 29, 1916 (39 Stat. 552); 18 U. S. C. 1111. 484. Suppression of violence; Puerto Rico.--That the governor

shall be responsible for the faithful execution of the laws of Puerto Rico and of the United States applicable to Puerto Rico, and whenever it becomes necessary he may call upon the commanders of the military and naval forces of the United States in the island, or summon the posse comitatus, or call out the militia to prevent or suppress lawless violence, invasion, insurrection, or rebellion, and he may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privilege of the writ of habeas corpus, or place

*

« 이전계속 »