provided for in Article D-7027(2), are based upon (1) confinement by sentence of court martial, (2) arrest for trial, and (3) conduct on shore which is discreditable to the service. The only other basis remaining for depriving a person of liberty is as a punishment by the commanding officer for an offensc committed, as provided for by Articles 24 and 25 A.G. N. Since deprivation of liberty as a mast punishment is not specifically excepted, it must be deemed to be subject to the twelve-day limitation. Any other interpretation would result in no provision being made for any limitation whatsoever, and would leave this Article meaningless. The Judge Advocate General is of the opinion that Article D-7027(2), Pureau of Naval Personnel Manual, indicates an intention to limit. mast punishment as to deprivation of liberty on shore to twelve days, and thus is in effect a limitation upon the commanding officer in the same manner as Naval Courts and Eoards, sec. 457, limits punishments by courts martial.

(b) The limitation of hours of extra duty that the commanding officer is authorized to impose at mast. "Extra duties" is one of the punishments to which the commanding officer's inherent power to punish is limited by Article 24, A.G.N. There is no time limitation upon this punishment in the article, in any other provision of law, nor is there a departmental administrative limitation in this regard. The commanding officer is the judge of degree of punishment; however, at the same time he is bound never to inflict any severer punishment than he conscientiously believes to be necessary to maintain discipline and due subordination in his ships. L.R.N.A. 1921, p. 1003, citing Dinsman v Wilkes (Dist. Col. 1851) 12 How. 390, 13 L. Ed. 1036.

(c) The status of men as regards restriction during the period they are performing extra duty as a mast punishment awarded by a commanding officer, when such restriction is not a part of the punishment as awarded.

The word "restriction", as here used, is presumed to mean "Deprivation of liberty

on shore". Under Art. 24, A.G.N., "Deprivation of liberty on shore" and "Extra duties" are set forth as separate and distinct punishments. This article indicates that a commander may inflict only one of them for a single offense, or at any one time; and, if the punishment of "Extra duties" is awarded, the punishment of "Deprivation of liberty on shore" may not be inflicted. Cf. C.M.O. 6, 1945, 241; 1, 1943, 135.

In view of the foregoing, the Judge Advocate General is of the opinion that a person under punishment of extra duty, as a result of commanding officer's mast may not be deprived of liberty during the period of days over which the extra duty extends. Such person should not be denied liberty if, upon completion of extra duty for a particular day, a period of liberty according to the regular liberty schedule of the command remains available to him on that day. "

It may be observed with satisfaction by all who are proud of the Navy's record in the field of justice that these evils, when they arise, are dealt with on the higher levels of authority. The files of this office include letters and dispatches to individual commanders, advising them to discontinue improper precedures, and it may not be doubted that the same is true of BuPers when irregularities in service record entries of mast punishments were noted. When irregularities show any trend toward becoming widespread practices, the service as a whole will be warned to cease and desist". SecNav and the Bureau and Office Chiefs remain members of a strong Regency to insure able government by the Navy's Kings.

Among the transfers listed in this issue appears the name of Captain Myron 11. Avery, USNR, released to inactive duty. The Admiralty Section of the JAG Office continues under his able guidance, however. He has been retained by the Navy Department in civilian status as Admiralty Counsel, Navy Department. The change of designation from Chief Admiralty Officer should be noted for use in correspondence.

Published monthly by the Judge Advocate General of the Navy in the interest of true justice. The mission of the JAG JOURNAL is to promote legal forehandedness among naval personnel charged with the administration of naval law. The goal to be attained through this unofficial medium of instruction and review for those untrained or trained in law is the clear understanding of the basic laws governing Navy life and of the rights and obligations of naval personnel.

The editorial policy has been established as one of informality. For this reason its pages are not citable as legal authority in any judicial proceedings. Court Martial Orders and Opinions of the Judge Advocate General will continue to be the authoritative sources of citable decisions and legal precedent.

Views on controversial topics expressed herein by individual authors must be construed as being their own personal views, not necessarily bearing the endorsement or approval of the Navy Department or of the Judge Advocate General.

REAR ADM. O. S. COLCLOUGH, USN

Judge Advocate General of the Navy

REAR ADM, G. L. RUSSELL, USN

Assistant Judge Advocate General of the Navy

COMDR. T. F. RYAN, USNR

Editor.

CUMULATIVE INDEX

August 1947-March 1948

Ethics of Prosecution

Security

Legal Aid

bursing Officers

Admiralty

Editor Editor

Comdr. R. E. Ryan

MARCH 1948

Maj. F. J. Mee

Lt. Comdr. R. W. Foster

Capt. M. H. Avery

In the naval profession, the expressions "buddy," "shipmate," and "pal" denote degrees of relationship among its members, a natural outgrowth of their daily association, of the sharing of the perils of the sea and of the innate desire of both officers and bluejackets to establish friendship bonds with those with whom they associate in the performance of their duties. In the realm of mischief, the otherwise innocent associates become the undesirable accomplices or partners in crime.

The legal scope of the term "accomplices" is well established in naval law. It includes all "partnersin-crime" whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact. The generally accepted test as to whether one is an accomplice in naval law is whether he himself could have been indicted for the offense either as principal or accessory. If he could not, then he is not an accomplice (C. M. O. 106, 1918, 2).

There are four recognized types of accomplices: (1) The perpetrators or principals in the first degree (NOTE.-In naval law, there is no distinction between principals in the first degree and principals in the second degree); (2) the aiders and abettors or principals in the second degree; (3) the inciters or accessories before the fact; and (4) the criminal protectors or accessories after the fact. Pursuant to Naval Courts and Boards, section 41, no distinction is made in charging principals and accessories before the fact. Accessories after the fact, however, are charged under the seventeenth paragraph of the 8th A. G. N. (N. C. B. Sec. 73). Accessories after the fact retain, however their intrinsic classification of accomplices.

Perpetrators, or principals in the first degree are those who commit the overt acts constituting the crime. Thus, a perpetrator is the deliverer of the fatal blow in homicide, the person who alters the signature in forgery, or the one who absents himself in desertion and unauthorized absence. Perpetrators also are those who, while not performing the overt acts themselves, indirectly do so by means of an innocent party or agent. Illustrative of this type of perpetrator is the case of

the poisoning of a victim by an innocent party who had no knowledge of the lethal contents of a glass of liquor given to him by the perpetrator for delivery to the victim.

An aider and abettor, or principal in the second degree is one who aids, counsels, commands, or encourages the commission of a crime in his actual or constructive presence. He differs from the principal in the first degree in that he does not commit the crime himself or with the aid of an innocent agent. It is particularly important to bear in mind that the one circumstance primarily distinguishing the principal in the second degree from the accessory before the fact is that of actual or constructive presence at the scene of the crime. In addition to his presence at the scene of the crime, the principal in the second degree must, by some act or omission, word, sign, or motion, unmistakably reveal his purpose of encouraging, inciting, or approving the crime. An enlightening case is that of two drivers of different vehicles who were engaged in a race on a public highway, each inciting the other to drive at an excessive speed. As a result of such conduct, a pedestrian was struck and killed by one of the vehicles. It was held that the driver of the latter vehicle was a principal in the first degree, and the other driver was a principal in the second degree.

One may be an aider and abettor of a crime by merely standing by for the purpose of giving aid to the perpetrator if necessary, provided, of course, the latter is apprised of this purpose. A unique situation was presented in C. M. O. 1, 1942, 207. The accused, X, was charged as an aider and abettor of Y, a pharmacist's mate, who maimed himself deliberately in the former's presence. The evidence showed that X was not merely witnessing a crime without intervention, but was present for the purpose of rendering first aid and did, in fact, render first aid to the "perpetrator-victim." It was held that, since the accused had aided and abetted the commission of the maiming, by standing by to give first aid while the act was being accomplished, he was a principal (in the second degree) of the offense committed.

The inciters, or accessories before the fact, are those who aid, counsel, command, or encourage

the commission of a crime without being present actually or constructively at its perpetration. It is well settled that one who incites the commission of a crime is guilty even if the perpetrator varies the method of perpetration. Thus, where X and Y, enlisted men stationed at a naval base, conspire to steal cigarettes, X advising Y to remove the cigarettes from government custody and to place them in a private vehicle for removal from the naval base by X, and Y removes the cigarettes, places them in a Government vehicle and takes them outside of the naval base, X is, nevertheless, an accessory before the fact to the theft of ciga

rettes.

An interesting case involving the three categories of accomplices discussed so far is reported in C. M. O. 8, 1922, 8. Thirty-three marines, divided into three groups, engaged in an affray with native policemen. The majority of the marines were armed with sticks, three of them had firearms. Three native policemen were shot at and killed. Some of the marines were not seen at the affray, but were shown to have been parties to the arrangements preliminary thereto. The specification under the charge of manslaughter, for trial in joinder, alleged that the accused "did each * and in concert one with another, shoot, with deadly weapons, to wit, firearms and did inflict mortal wounds Categorizing the participants in this episode, those who fired the fatal shots were perpetrators; the other marines who actively engaged in the affray were aiders and abettors; and, finally, those who took part in the preliminaries, but who were absent from the affray, were accessories before the fact, and consequently, liable as principals under naval law.

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The criminal protectors, or accessories after the fact, are those who render assistance to a criminal in an effort to hinder or to prevent his detection, arrest, trial or punishment. Four conditions must exist to render one an accessory after the fact: (a) A crime must have been committed by another: (b) the accessory must not have been guilty of the crime as a principal; (c) the accessory must have done some act to assist the criminal in the latter's efforts to avoid the consequences of his crime; and (d) the assistance must have been rendered with knowledge of the crime. The distinction between principals and accessories is not applicable to treason since those who aid traitors in their efforts to save themselves from the legal consequences of their crimes are indictable as principals.

An accessory after the fact is illustrated in the case reported in C. M. O. 1, 1944, 174. Two enlisted men, A and B, were charged jointly with housebreaking and theft. A broke into an officers' club and took and carried away money found therein. Together the two men ran off with the money, some of which subsequently was found in B's locker. B claimed the money belonged to A, that after A had committed the housebreaking and theft he had given B some money which the latter accepted. B admitted knowledge of the crimes after they had been committed. The finding as to B on the above charges and the speciflcations thereunder were set aside. It was held that B was not a principal, and that if he was an accessory after the fact he should have been charged as directed by section 41, N. C. & B.

In earmarking the various classes of accomplices naval courts martial are faced with an exacting judicial test. In C. M. O. 9, 1945, 407, two enlisted men, F and J, were tried on a specification alleging that they did, each and together, take and carry away a certain amount of seastore tax-free cigarettes. The prosecution introduced in evidence a signed statement, voluntarily made by J, in which he admitted that on the night in question, he met F outside of the master at arms hut on the base; that F requested his assistance for the purpose of removing some cigarettes from the base; that he accompanied F to a place near the building where they filled a seabag full of cigarettes, and then took them to the home of F's brother-inlaw; and that he, J, knew at the time that he began to assist F that the latter had stolen the cigarettes. Upon taking the stand, J admitted substantially all the facts but denied helping F steal the cigarettes from the building.

Faced with the problem of determining J's criminal status, if any, the court properly concluded that J was guilty as a principal. The majority of modern decisions hold that a person who assists in carrying away stolen property after the original taking by another, knowing the property to be stolen, even though such person did not assist or know of the original taking at the time thereof, is guilty of theft as a principal. Not only does this case properly apply the law with respect to accomplices, but also it forecloses any possible confusion with such crimes as "receiving stolen goods" or "compounding a felony". In this regard, it is easily distinguishable from the case reported in C. M. O. 3, 1931, 18, where Z, who re