Chapter XXVI.
Punitive articles

127. PUNITIVE ARTICLES--Synopsis of chapter.--In this synopsis the left-hand references are to paragraphs; the right-hand, to pages.

     Par.			Page
     128.	Preliminary statement		140
     129.	A.W. 54, Fraudulent enlistment		140
     130.	A.W. 58:
     	a.	Desertion	142
     	b.	Attempting to desert	145
     131.	A.W. 59, Advising, persuading, or assisting desertion		145
     132.	A.W. 61, Absence without leave		145
     133.	A.W. 63, Disrespect toward a superior officer		146
     134.	A.W. 64:
     	a.	Assaulting superior officer	147
     	b.	Disobeying superior officer	148
     135.	A.W. 65:
     	a.	Assaulting a warrant officer or a noncommissioned officer	149
     	b.	Disobeying a warrant officer or a noncommissioned officer	149
     	c.	Using threatening or insulting language or behaving in an insubordinate or disrespectful manner toward a warrant officer or a noncommissioned officer	150
     136.	A.W. 66:
     	a.	Attempting to create a mutiny or sedition	150
     	b.	Beginning or joining a mutiny or sedition	151
     	c.	Causing or exciting a mutiny of sedition	151
     137.	A.W. 67:
     	a.	Failure to suppress mutiny or sedition	152
     	b.	Failure to give information of mutiny of sedition	152
     138.	A.W. 68:
     	a.	Disobedience of orders into arrest of confinement	152
     	b.	Threatening, drawing a weapon upon, or offering violence to, an officer, member of the Army Nurse Corps, warrant officer, band leader, or noncommissioned officer	152
     139.	A.W. 69:
     	a.	Breach of arrest	153
     	b.	Escape from confinement	154
     140.	A.W. 73:
     	a.	Releasing a prisoner without proper authority	154
     	b.	Suffering a prisoner to escape through neglect	155
     	c.	Suffering a prisoner to escape through design	155
     141.	A.W. 75:
     	a.	Misbehavior before the enemy	156
     	b.	Running away before the enemy	156
     142.	A.W. 82, Being a spy		157
     143.	A.W. 83, Suffering military property to be lost, etc.		157
     144.	A.W. 84:
     	a.	Selling or wrongfully disposing of military property	158
     	b.	Willfully or through neglect injuring or losing military property	159

Par.			Page
145.	A.W. 85, Being found drunk on duty		159
146.	A.W. 86:
	a.	Being found drunk on post	160
	b.	Being found sleeping on post	161
	c.	Leaving post before being relieved	161
147.	A.W. 89:
	a.	Committing any waste or spoil	161
	b.	Willfully destroying property	161
	c.	Committing depredation or riot	161
	d.	Refusing or omitting to see reparation made	162
148.	A.W. 92:
	a.	Murder	162
	b.	Rape	165
149.	A.W. 93:
	a.	Manslaughter	165
	b.	Mayhem	167
	c.	Arson	167
	d.	Burglary	168
	e.	Housebreaking	169
	f.	Robbery	170
	g.	Larceny	171
	h.	Embezzlement	173
	i.	Perjury	174
	j.	Forgery	175
	k.	Sodomy	177
	l.	Assault with intent to commit any felony	177
		Assault	177
		Assault with intent to murder	178
		Assault with intent to commit manslaughter	179
		Assault with intent to commit rape	179
		Assault with intent to rob	179
		Assault with intent to commit sodomy	180
	m.	Assault with intent to do bodily harm with a danger weapon, instrument, or other thing	180
	n.	Assault with intent to do bodily harm	180
150.	A.W. 94:
	a.	Making or causing to be made a false or fraudulent claim	180
	b.	Presenting or causing to be presented for approval or payment a false or fraudulent claim	181
	c.	Entering into an agreement or conspiracy to defraud the United States through false claims	182
	d.	Making, using, procuring, or advising the making or use of a false writing or other paper in connection with claims	182
	e.	False oath in connection with claims	183
	f.	Forgery, etc. of signature in connection with claims	183
	g.	Delivering less than amount called for by receipt	183
	h.	Making or delivering receipt without having full knowledge that the same is true	184
	i.	Stealing, embezzlement, misappropriation, sale, etc. of military property or money	184
	j.	Purchasing or receiving in pledge of military property	185
151.	A.W. 95, Conduct unbecoming and officer and a gentleman		186

Par.			Page
152.	A.W. 96:
	a.	Disorders and neglects to the prejudice of good order and military discipline	187
	b.	Conduct of a nature to bring discredit upon the military service	188
	c.	Crimes or offenses not capital	188
		Assault	189
		Assault and battery	189
		Uttering a forged instrument	189
		Attempts	190
		Burning buildings, vessels, lumber, stores, arms, ammunition, etc.	191
		False swearing	191

128. PRELIMINARY STATEMENT.--Articles 55, 56, 57, 60, 62, 70, 71, 72, 74, 75 (parts only), 76, 77, 78, 79, 80, 81, 87, 88, 90, 91 are omitted from this chapter, as the offenses denounced by them are of such infrequent occurrence. In case of any doubt with respect to such an offense that is not resolved by a reference to the pertinent Articles of War and any interpretations thereof that may be included in App. 1, and to the form of specification (App. 4), reference should be had to authoritative military precedents.

129. FIFTY-FOURTH ARTICLE OF WAR.
     FRAUDULENT ENLISTMENT

     Discussion.-A fraudulent enlistment is an enlistment procured by means of either a willful--i.e., intentional--misrepresentation in regard to any of the qualifications or disqualifications prescribed by law, regulation, or orders for enlistment, or a willful concealment in regard to any such disqualification.

     Misrepresentation and concealment include any act, statement, or omission, which has the effect of conveying what is known by the applicant to be an untruth or of concealing what he knows to be the truth concerning his qualifications or disqualifications for enlistment.

     Misrepresentation or concealment may be with respect to matters which, if truthfully stated or revealed, would induce an inquiry by the recruiting officer concerning the qualifications or disqualifications for enlistment, such as matters called for by questions as to previous service and previous applications for enlistment. Where a soldier again enlists without a discharge, he should be charged under A.W. 54 if he has received pay or allowances, otherwise he should be charged under A.W. 96. See 152a.

     A person who procures himself to be enlisted by means of several willful misrepresentations and concealments as to his qualifications

for the one enlistment so procured and receives pay and allowances under such enlistment commits but one offense under A.W. 54.

Proof.--(a) The enlistment of the accused in the military service as alleged; (b) that the accused willfully--i.e., intentionally--misrepresented or concealed a certain material fact or facts regarding his qualifications for enlistment as alleged; (c) that his enlistment was procured by such intentional misrepresentation or concealment; and (d) that under such enlistment the accused received either pay or allowances, or both, as alleged.

The receipt of pay or allowances should be proved by direct evidence if such evidence is reasonably available, but may be proved by circumstantial evidence--i.e., by merely showing that accused was on duty under such enlistment a sufficient time to warrant the inference that he had been fed or sheltered or both. Whatever was furnished accused while in confinement pending trial for the fraudulent enlistment, or transportation furnished accused for the convenience of the Government, is not considered an allowance.

Where concealment of a dishonorable discharge is alleged, the final indorsement on the service record is competent evidence of the dishonorable discharge.

Where it is sought to prove that the accused enlisted at various times under different names, his identity as the person so enlisting may be proved, prima facie, by photostat copies of the various enlistment and identification records with the certificate of The Adjutant General, or one of his assistants, as official custodian of such records, that the fingerprint records accompanying the various enlistment records have been compared by a duly qualified fingerprint expert on duty as such in his office and that such fingerprints are those of one and the same person. See 125 (Judicial notice).

Where an accused is being held under suspected fraudulent enlistment or desertion at a post where he is unknown, his fingerprints should be taken and forwarded to The Adjutant General for identification. In such a case the identity of the accused may be established, prima facie, by the testimony of the person who took such fingerprints or by some one who was present at the time they were taken, together with the certificate from the office of The Adjutant General as above provided. Of course, fingerprints are not the only method of identification. A witness may be available who has known the accused in his several, enlistments and can identify him. So also signatures on the enlistment records, tattoo marks and scars on the body, peculiarities and deformities, may be used to establish identity.

130. FIFTY-EIGHTH ARTICLE OF WAR. a. DESERTION

     Discussion.--Desertion is absence without leave accompanied by the intention not to return, or to avoid hazardous duty, or to shirk important service.

     Absence without leave with intent not to return.--Both elements are essential to the offense, which is complete when the person absents himself without authority from his place of service (which is for him "the service of the United States") with intent not to return thereto. A prompt repentance and return, while material in extenuation, is no defense. The fact that such intent is coupled with a purpose to return provided a particular but uncertain event happens in the future, or to report for duty elsewhere, or again to enlist, does not constitute a defense. Unless, however, an intent not to return to his place of duty exists at the inception of, or at some time during the absence, the soldier can not be a deserter, whether his purpose is to stay away a definite or an indefinite length of time. If a soldier while in desertion again enlists and deserts while serving under the second enlistment, he is amenable to trial for both desertions. Under A.W. 28 any soldier who "without having first received a regular discharge again enlists in the Army or in the militia when in the service of the United States, or in the Navy or Marine Corps of the United States, or in any foreign army shall be deemed to have deserted the service of the United States." Such enlistment is not only no defense to a charge of desertion but is prima facie proof of it. His presence in the military service under such enlistment is not in itself a return to military control with respect to his former enlistment, although such return may be effected through his voluntary disclosure of the facts or through the discovery of the facts without his aid. For example, where such a deserter is confined by his commanding officer as a result of information received from the War Department, his desertion should be regarded as terminated by apprehension. In a case of a soldier enlisting without a discharge, the specification charging desertion should follow the usual form, the desertion being alleged as having occurred on the date accused absented himself without leave. If not absent without leave before he again enlisted, he becomes so absent at that time.

     Absence without leave with intent to avoid hazardous duty or with intent to shirk important service.-Under A.W. 28 any person subject to military law who "quits his organization or place of duty with the intent to avoid hazardous duty or to shirk important service shall be deemed a deserter." The "hazardous duty" or "important service" may include such service of troops as strike or riot duty; employment

in aid of the civil power in, for example, protecting property, or quelling or preventing disorder in times of great public disaster; embarkation for foreign duty or duty beyond the continental limits of the United States; and, under some exceptional circumstances such as threatened invasion, entrainment for duty on the border. Such services as drill, target practice, maneuvers, and practice marches will not ordinarily be regarded as included.

Proof.--(a) That the accused absented himself without leave, or remained absent without leave from his place of service, organization, or place of duty, as alleged; (b) that he intended, at the time of absenting himself or at some time during his absence, to remain away permanently from such place, or to avoid hazardous duty, or to shirk important service as alleged; (c) that his absence was of a duration and was terminated as alleged; and (d) that the desertion was committed under the circumstances alleged; e.g., in the execution of a certain conspiracy or in time of war. As to time of war, see 125 (Judicial notice).

Absence without leave.--Absence without leave is usually proved, prima facie, by entries on the morning report. See 116 and 117 and W.D., A.G.O. Form No. 44. But the morning report, even though it refers to the accused as a "deserter," is not complete evidence of desertion; it is evidence only of absence without leave, and it is still necessary for the trial judge advocate to prove an intent to remain permanently absent, or else to avoid hazardous duty or to shirk important service. The condition of absence without leave with respect to an enlistment having once been shown to exist may be presumed to have continued, in the absence of evidence to the contrary, until the accused's return to military control under such enlistment. Where a soldier during one enlistment again enlists or attempts to enlist while on a duty status or while on pass or furlough, he by that act abandons such status of duty, pass, or furlough, and from that moment becomes absent without leave with respect to the former enlistment. Similarly a soldier absent on a short pass from his station who, for instance, is found on board a steamer bound for China may be regarded as having abandoned any authority he might have for such absence and to be absent without leave, although he may not have gone beyond the area fixed in the pass and the pass may not have expired.

Intent.--If the condition of absence without leave is much prolonged, and there is no satisfactory explanation of it, the court will be justified in inferring from that alone an intent to remain permanently absent. However, a plea of guilty of absence without leave to a charge of desertion is not in itself a sufficient basis for a conviction of desertion. In such a case no inference of the intent not

to return arises from any admission involved in the plea, and therefore, to warrant conviction of desertion, evidence, such as evidence of a prolonged absence or other circumstances, must be introduced from which the intent in desertion can be inferred. Such inference may be drawn from such circumstances as that the accused attempted to dispose of his uniform or other property; that his civilian clothes were missing; that he purchased a ticket for a distant point or was arrested or surrendered at a considerable distance from his station; that he attempted to secure passage or to stow away on a ship; that while absent he was in the neighborhood of military posts and did not surrender to the military authorities; that he was dissatisfied in his company or with the military service; that he had made remarks indicating an intention to desert the service; that he was under charges or had escaped from confinement at the time he absented himself; that just previous to absenting himself he stole or took without authority money, civilian clothes, or other property that would assist him in getting away. On the other hand, previous excellent and long service, the fact that none of the property of the accused was missing from his locker, and the fact that he was under the influence of intoxicating liquor or drugs when he absented himself, and that he continued for some time under their influence, etc., are circumstances which the court may regard as a basis for a contrary inference. Although accused may testify that he intended to return, such testimony is not compelling as the court may believe or reject the testimony of any witness in whole or in part. The fact that a soldier intends to report or actually reports at another station does not, on the one hand, prevent a conviction for desertion, as such fact in connection with other circumstances may tend to establish his intention not to return to his proper place of duty. On the other hand, a soldier absent without leave from his place of service and without funds may report to another station for transportation back to his original place of duty, and such a circumstances would, of course, tend to negative the existence of such intent. No general rule can be laid down as to the effect to be given to an intention to report or an actual reporting at another station.

Where the accused soldier enlisted without a discharge (see A.W. 28), the proof should include proof that the accused was a soldier in a certain organization of the Army; and that, without being discharged from such organization, he again enlisted in the Army, or in the militia when in the service of the United States, or in the Navy, or the Marine Corps of the United States, or in some foreign army. For the method of proving the fact that accused was not discharged from his prior enlistment, see 152 (Disorders and neglects, etc.).

b. ATTEMPTING TO DESERT

Discussion.--An attempt to desert is an overt act other than mere preparation toward accomplishing a purpose to desert. The attempt to desert may be with the intent not to return, to avoid hazardous duty, or to shirk important service. Once the attempt is made, the fact that the soldier desists, either of his own accord or otherwise, does not obliterate the offense. An instance of the offense is: A soldier intending to desert hides himself in an empty freight car on the post, intending to effect his escape from the post by being taken out in the car. Entering the car with intent to desert is the overt act. See discussion of desertion.

Proof.--(a) That the accused made the attempt by doing the overt act or acts alleged ; (b) that he intended to desert at the time of doing such act or acts; that is, he then entertained the intent not to return, or the intent to avoid hazardous duty or to shirk important service as alleged; (c) that the attempt was made under the circumstances alleged; e.g., in the execution of a certain conspiracy or in time of war. As to time of war, see 125 (Judicial notice). See comments under Proof of desertion.

131. FIFTY-NINTH ARTICLE OF WAR.
     ADVISING, PERSUADING, OR ASSISTING DESERTION

     Discussion.--See 130.

     The offenses of persuading and assisting desertion are not complete unless the desertion occurs; but the offense of advising is complete when the advice is given, whether the person advised deserts or not.

     It is not necessary that the accused act alone in giving the advice or assistance or in the persuasion; and he may act through other persons in committing the offenses.

     Proof.--(a) That the accused in the manner and form alleged, advised, used persuasion to induce, or knowingly assisted a certain person subject to military law to desert as alleged; (b) if charged with persuading or assisting desertion, that such certain person deserted as alleged (see Proof of desertion), and, where persuasion is alleged, that he was induced to do so by such persuasion; and (c) that the act of advising, persuading, or assisting was done, if so alleged, in time of war. See, however, paragraph 125 (Judicial notice).

132. SIXTY-FIRST ARTICLE OF WAR.
     ABSENCE WITHOUT LEAVE

     Discussion.--The article is designed to cover every case not elsewhere provided for where any person subject to military law is through his own fault not at the place where he is required to be at

a time when he should be there. The first part of the article--that relating to the properly appointed place of duty--applies whether such place is appointed as a rendezvous for several or for one only. Thus it would apply in the case of a soldier failing to report as the kitchen police or leaving such duty after reporting.

A soldier turned over, upon application under A.W. 74, to the civil authorities, is not absent without leave while held by them under such delivery. So, also, where a soldier, being absent with leave, or absent without leave is held, tried, and acquitted by the civil authorities, his status as absent with leave, or absent without leave, is not thereby changed however long he may be held. Where a soldier is convicted by the civil authorities, the fact that he was arrested, held, and tried does not excuse any unauthorized absence, and the status of absence without leave is not changed by an inability to return through sickness, or lack of transportation facilities, or other disabilities. But the fact that all or part of a period of unauthorized absence was in a sense enforced or involuntary, should be given due weight when considering the punishment to be imposed.

Proof.--Where the accused fails to appear at or goes from a place of duty--

(a) That a certain authority appointed a certain time and place for a certain duty by the accused, as alleged; and (b) that the accused failed to report to such place at the proper time, or, having so reported, went from the same without authority froin anyone competent to give him leave to do so.

Where the accused is charged with absenting himself without proper leave--

(a) That the accused absented himself from his command, guard, quarters, station, or camp for a certain period. as alleged; and (b) that such absence was without authority from anyone competent to give him leave.

Where the accused is charged with absenting himself without proper leave from his guard with intent to abandon the same--

(a) That the accused absented himself from his guard as alleged; (b) that such absence was without authority from anyone competent to give him leave; and (c) the facts and circumstances of the case indicating that the accused intended to abandon his guard.

133. SIXTY-THIRD ARTICLE OF WAR.
     DISRESPECT TOWARD A SUPERIOR OFFICER

     Discussion.--The disrespectful behavior contemplated by this article is such as detracts from the respect due to the authority and person of a superior officer. It may consist in acts or language, however expressed.

It is not essential that the disrespectful behavior be in the presence of the superior, but in general it is considered objectionable to hold one accountable under this article for what was said or done by him in a purely private conversation.

The officer toward whom the disrespectful behavior was directed must have been the superior of the accused at the time of the acts charged; but by superior is not necessarily meant a superior in rank, as a line officer, though inferior in rank, may be the commanding officer, and thus the superior of a staff officer, such as a medical officer.

Disrespect by words may be conveyed by opprobrious epithets or other contumelious or denunciatory language. Disrespect by acts may be exhibited in a variety of modes--as neglecting the customary salute, by a marked disdain, indifference, insolence, impertinence, undue familiarity, or other rudeness in the presence of the superior officer. (Winthrop.)

Where the accused did not know that the person against whom the acts, etc., were directed was his superior officer, such lack of knowledge is a defense.

Proof.--(a) That the accused did or omitted to do certain acts or used certain language to or concerning a certain officer, as alleged; (b) that the behavior involved in such acts, omissions, or words was, under certain circumstances, or in a certain connection: or with a certain meaning, as alleged; and (c) that the officer toward whom the acts, omissions, or words were directed was the accused's superior officer.

134. SIXTY-FOURTH ARTICLE OF WAR. a. ASSAULTING SUPERIOR OFFICER

     Discussion.--The phrase "on any pretense whatsoever" is not to be understood as excluding as a defense the fact that the striking was done in legitimate self-defense or in the discharge of some duty, such as is enjoined by A.W. 67.

     By "superior officer" is meant not only the commanding officer of the accused, whatever may be the relative rank of the two, but any other commissioned officer of rank superior to that of the accused. That the accused did not know the officer to be his superior is available as a defense.

     The word "strikes" means an intentional blow with anything by which a blow can be given.

     The phrase "draws or lifts up any weapon against" covers any simple assault committed in the manner stated. The weapon chiefly had in view by the word "draw" is no doubt the sword; the term might, however, apply to a bayonet in a sheath or to a pistol,

and the drawing of either in an aggressive manner or the raising or brandishing of the same minaciously in the presence of the superior and at him is the sort of act contemplated. The raising in a threatening manner of a firearm (whether or not loaded) or of a club, or of any implement or thing by which a serious blow could be given, would be within the description, "lifts up." (Winthrop.)

The phrase "offers any violence against him" comprises any form of battery or of mere assault not embraced in the preceding more specific terms "strikes" and "draws or lifts up." But the violence where not executed must be physically attempted or menaced. A mere threatening in words would not be an offering of violence in the sense of the article. (Winthrop.)

An officer is in the execution of his office "when engaged in any act or service required or authorized to be done by him by statute, regulation, the order of a superior, or military usage." (Winthrop.) It may be taken in general that striking or using violence against any superior officer by a person subject to military law, over whom it is at the time the duty of that superior officer to maintain discipline, would be striking or using violence against him in the execution of his office.

Proof.--(a) That the accused struck a certain officer, or drew or lifted up a weapon against him, or offered violence against him, as alleged; (b) that such officer was the accused's superior officer at the time; and (c) that such superior officer was in the execution of his office at the time.

b. DISOBEYING SUPERIOR OFFICER

Discussion.--The willful disobedience contemplated is such as shows an intentional defiance of authority, as where a soldier is given an order by an officer to do or cease from doing a particular thing at once and refuses or deliberately omits to do what is ordered. A neglect to comply with an order through heedlessness, remissness, or forgetfulness is an offense chargeable under A.W. 96. Where the order to a person is to be executed in the future, a statement by him to the effect that he intends to disobey it is not an offense under A.W. 64, although carrying out such an intention may be.

The order must relate to military duty and be one which the superior officer is authorized under the circumstances to give the accused. Disobedience of an order which has for its sole object the attainment of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable under this article.

A person can not be convicted under this article if the order was illegal; but an order requiring the performance of a military duty or act is disobeyed at the peril of the subordinate. Disobedience of an illegal order might under some circumstances involve an act of insubordination properly chargeable under A.W. 96.

That obedience to a command involved a violation of the accused's religious scruples is not a defense.

Failure to comply with the general or standing orders of a command, or with the Army Regulations, is not an offense under this article, but under A.W. 96; and so of a nonperformance by a subordinate of any mere routine duty.

The form of an order is immaterial, as is the method by which it is transmitted to the accused, but the communication must amount to an order and the accused must know that it is from his superior officer; that is, a commissioned officer who is authorized to give the order whether he is superior in rank to the accused or not.

Proof.--(a) That the accused received a certain command from a certain officer as alleged; (b) that such officer was the accused's superior officer; and (c) that the accused willfully disobeyed such command. A command of a superior officer is presumed to be a lawful command.

135. SIXTY-FIFTH ARTICLE OF WAR.
     a. ASSAULTING A WARRANT OFFICER OR A NONCOMMISSIONED OFFICER

     Discussion.--This article has the same general objects with respect to warrant officers and noncommissioned officers as A.W. 63-64 have with respect to commissioned officers, namely, to insure obedience to their lawful orders, and to protect them from violence, insult, or disrespect.

     The terms "willfully disobeys," "lawful," and "in the execution of his office" are used in the same sense as in A.W. 64; and the term "order" is used in the same sense as "command" in A.W. 64.

     For definition of assault, see 149l. The part of the article relating to assaults covers any unlawful violence against a warrant officer or a noncommissioned officer in the execution of his office, whether such violence is merely threatened or is advanced in any degree toward application.

     Proof.--(a) That the accused soldier struck a certain warrant officer or noncommissioned officer as alleged, or assaulted or attempted or threatened to strike or assault him in a certain manner, as alleged; and (b) that such violence was done, attempted, or threatened while such warrant officer or noncommissioned officer was in the execution of his office.

DISOBEYING A WARRANT OFFICER OR A NONCOMMISSIONED OFFICER

Discussion.--See discussion under 135a.

Proof.--(a) That the accused soldier received a certain order from a certain warrant officer or noncommissioned officer, as alleged; and (b) that such order was given while such warrant officer or noncommissioned officer was in the execution of his office; and (c) that the accused soldier willfully disobeyed such command. An order from a warrant officer or a noncommissioned officer in the execution of his office is presumed to be a lawful order.

c. USING THREATENING OR INSULTING LANGUAGE OR BEHAVING IN AN INSUBORDINATE OR DISRESPECTFUL MANNER TOWARD A WARRANT OFFICER OR A NONCOMMISSIONED OFFICER

Discussion.--The word "toward" limits the application of this part of the article to language and behavior within sight or hearing of the warrant officer or noncommissioned officer concerned; the word not being used in the same sense as in A.W. 63.

Proof.--(a) That the accused used language or did or omitted to do acts under certain circumstances, or in a manner, or with an intended meaning, as alleged; (b) that such language or behavior was used toward a certain warrant officer or noncommissioned officer; and (c) that such warrant officer or noncommissioned officer was in the execution of his office at the time.

136. SIXTY-SIXTH ARTICLE OF WAR.
     a. ATTEMPTING TO CREATE A MUTINY OR SEDITION

     Discussion.--Mutiny imports collective insubordination and necessarily includes some combination of two or more persons in resisting lawful military authority. Sedition implies the raising of commotion or disturbance against the State; it is a revolt against legitimate authority and differs from mutiny in that it implies a resistance to lawful civil power.

     The concert of insubordination contemplated in mutiny or sedition need not be preconceived nor is it necessary that the act of insubordination be active or violent. It may consist simply in a persistent and concerted refusal or omission to obey orders, or to do duty, with an insubordinate intent.

     An attempt to commit a crime is an act done with specific intent to commit the particular crime and proximately tending to, but falling short of, its consummation. There must be an apparent possibility to commit the crime in the manner specified. Voluntary abandonment of purpose after an act constituting an attempt while material in extenuation is not a defense

The intent which distinguishes mutiny or sedition is the intent to resist lawful authority in combination with others. The intent to create a mutiny or sedition may be declared in words, or, as in all other cases, it may be inferred from acts done or from the surrounding circumstances. A single individual may harbor an intent to create a mutiny and may commit some overt act tending to create a mutiny or sedition and so be guilty of an attempt to create a mutiny or sedition, alike whether he was joined by others or not, or whether a mutiny or sedition actually followed or not.

Proof.--(a) An act or acts of accused which proximately tended to create a certain intended (or actual) collective insubordination; (b) a specific intent to create a certain intended (or actual) collective insubordination; and (c) that the insubordination occurred or was intended to occur in a company, party, post, camp, detachment, guard, or other command in the Army of the United States.

b. BEGINNING OR JOINING IN A MUTINY OR SEDITION<

Discussion.--See 136a. There can be no actual mutiny or sedition until there has been an overt act of insubordination joined in by two or more persons. Therefore no person can be found guilty of beginning or joining in a mutiny unless an overt act of mutiny is proved. A person is not guilty of beginning a mutiny unless he is the first, or among the first, to commit an overt act of mutiny; and a person can not join in a mutiny without joining in some overt act. Hence presence of the accused at the scene of mutiny is necessary in these two cases.

Proof.--(a) The occurrence of certain collective insubordination in a company, party, post, camp, detachment, or other command in the Army of the United States; and (b) that the accused began or joined in such certain collective insubordination.

c. CAUSING OR EXCITING A MUTINY OR SEDITION

Discussion.--See 136a. As in 136b, no person can be guilty of causing or exciting a mutiny unless an overt act of mutiny follows his efforts. But a person may excite or cause a mutiny without taking personal part in, or being present at, the demonstrations of mutiny which result from his activities.

Proof.--(a) The occurrence of certain collective insubordination in a certain company, party, post, camp, detachment, or guard, or other command in the Army of the United States; and (b) acts of the accused tending to cause or excite the certain collective insubordination.

137. SIXTY-SEVENTH ARTICLE OF WAR.
     a. FAILURE TO SUPPRESS MUTINY OR SEDITION

     Discussion.--See 136. The article applies only to officers and soldiers. Similar acts or omissions by other persons subject to military law are chargeable under A.W. 96.

     One is not present at a mutiny unless an act or acts of collective insubordination occur in his presence.

     The article requires of an officer or soldier "his utmost endeavor" to suppress a mutiny or sedition at which he is present. Where such extreme measures are reasonably necessary under the circumstances, the use of a dangerous weapon and the taking of life are required; but the use of more force than is reasonably necessary under the circumstances is an offense. See 149a (Manslaughter).

     Proof.--(a) The occurrence of an act or acts of collective insubordination in the presence of the accused; and (b) acts or omissions of the accused which constitute a failure to use his utmost endeavor to suppress such acts.

     b. FAILURE TO GIVE INFORMATION OF MUTINY OR SEDITION

     Discussion.--See 137a. Where circumstances known to the accused are such as would have caused a reasonable man in the same or similar circumstances to believe that a mutiny or sedition was impending, these circumstances will be sufficient to charge the accused with such "reason to believe" as will render him culpable under the article.

     It is not a necessary element of the crime that the impending mutiny or sedition materialize.

     "Delay" imports the lapse of an unreasonable time without action.

     Proof.--(a) That the accused knew that a mutiny or sedition was impending or that he knew of circumstances that would have induced, in a reasonable man, a belief that a mutiny or sedition was impending; and (b) acts or omissions of the accused which constitute a failure or unreasonable delay in informing his commanding officer of his knowledge or belief.

138. SIXTY-EIGHTH ARTICLE OF WAR.
     a. DISOBEDIENCE OF ORDERS INTO ARREST OR CONFINEMENT

     Discussion.--A fray is a fight in a public place to the terror of the people, in which acts of violence occur or dangerous weapons are exhibited or threatened to be used. All persons aiding or abetting a fray are principals. The word "fray" is thus seen to be somewhat restrictive, but the words "quarrels" and "disorders" include any disturbance of a contentious character from a mere war of words to a rout or riot.

It is immaterial under the article whether the officer or other person who essays to part or quell a quarrel, fray, or disorder is on a duty status or not, as it is immaterial whether the persons engaged in the quarrel, etc., are superior to him in rank or not.

It should appear that the power conferred by the article was being exercised for the purpose stated, and therefore the charges and proof should refer to the order given during the disorder. It should be made to appear that the accused heard or understood the order and knew that the person giving it was an officer or noncommissioned officer, or other person thereunto authorized by the article.

Proof.--(a) That the accused was a participant in a certain quarrel, fray, or disorder occurring among persons subject to military law; (b) that during the disorder a certain officer, or other authorized person, ordered the accused into arrest or confinement as alleged, with a view to quell or part the disorder; and (c) that the accused refused to obey.

b. THREATENING, DRAWING A WEAPON UPON, OR OFFERING VIOLENCE TO, AN OFFICER, MEMBER OF THE ARMY NURSE CORPS, WARRANT OFFICER, BAND LEADER, OR NONCOMMISSIONED OFFICER

Discussion.--See discussion in 134, 135, and 138a. The word "threat" as here used includes any menacing action, either by gesture or by words.

Proof.--The proof of the second, third, and fourth crimes defined by the article should follow in form and essentials the proof in 138a, except that, instead of proving a refusal to obey, drawing a weapon, making a threat, or doing violence must be proved as the consummation of the particular offense.

139. SIXTY-NINTH ARTICLE OF WAR.
     
     a. BREACH OF ARREST

     Discussion.--The distinction between arrest and confinement lies in the difference between the kinds of restraint imposed. In arrest the restraint is moral restraint imposed by the orders fixing the limits of arrest or by the terms of the article. Confinement imports some physical restraint.

     The offense of breach of arrest is committed when the person in arrest infringes the limits set by orders, or by A.W. 69, and the intention or motive that actuated him is immaterial to the issue of guilt, though, of course, proof of inadvertance or bona fide mistake is admissible in extenuation. Innocence of the offense with respect to which an arrest or confinement may have been imposed is not a defense. A person can not be convicted of a violation of this article

if the arrest or confinement was in fact illegal. However, the circumstances of a breach of an illegal restraint may subject the person breaking such restraint to a prosecution under some other article. For example, where a prisoner in making an escape assaults a sentinel, the fact that the confinement was illegal would not be a defense to a prosecution for the assault. It is immaterial whether the breach of arrest or escape from confinement took place before or after trial, acquittal, or sentence. A violation of a restraint on liberty other than arrest or confinement--for example, the restraint imposed on a prisoner paroled to work within certain limits--should be charged under A.W. 96.

Proof.--(a) That the accused mas duly placed in arrest; and (b) that before he was set at liberty by proper authority he transgressed the limits fixed by A.W. 69 or by the orders of proper authority. An arrest is presumed to be legal.

b. ESCAPE FROM CONFINEMENT

Discussion.--See 139a. (Breach of arrest). An escape may be either with or without force or artifice, and either with or without the consent of the custodian. Any completed casting off of the restraint of confinement, before being set at liberty by proper authority, is an escape from confinement, and a lack of effectiveness of the physical restraint imposed is immaterial to the issue of guilt. An escape is not complete until the prisoner has, momentarily, at least, freed himself from the restraint of his confinement; so, if the movement toward escape is opposed, or before it is completed an immediate pursuit ensues, there will be no escape until opposition is overcome or pursuit is shaken off. In cases where the escape is not completed the offense should be charged as an attempt under A.W. 96.

Proof.--(a) That the accused was duly placed in confinement; and (b) that he freed himself from the restraint of his confinement before he had been set at liberty by proper authority. A confinement is presumed to be legal.

140. SEVENTY-THIRD ARTICLE OF WAR.
     
     a. RELEASING A PRISONER WITHOUT PROPER AUTHORITY

     Discussion.--The words "any prisoner" include a civilian or military prisoner.

     While a commander of the guard must receive a prisoner properly committed by any officer, the power of the committing officer ceases as soon as he has committed the prisoner, and he is not, as such committing officer, a "proper authority" to order a release,

An officer may receive in his charge a prisoner not committed in strict compliance with the terms of A.W. 71 or other law, and such prisoner having been so received has been "duly committed."

Proof.--(a) That a certain prisoner was duly committed to the charge of the accused; and (b) that the accused released him without proper authority.

b. SUFFERING A PRISONER TO ESCAPE THROUGH NEGLECT

Discussion.--See 140a. The word "neglect" is here used in the sense of the word "negligence."

Negligence is a relative term. It is defined in law as the absence of due care. The legal standard of care is that which would have been taken by a reasonably prudent man in the same or similar circumstances. This test looks to the standard required of persons acting in the capacity in which the accused was acting. Thus, if the accused is an officer, the test will be, "How would a reasonably prudent officer have acted?" If the circumstances were such as would have indicated to a reasonably prudent officer that a very high order of care was required to prevent escape, then the accused must be held to a very high order of care. The test is thus elastic, logical, and just.

A prisoner can not be said to have escaped until he has overcome the opposition that restrained him and shaken off immediate pursuit. If he escapes, the fact that he returns, is taken in a fresh pursuit, is killed, or dies, is not a defense to a charge of having suffered him to escape through neglect.

Proof.--(a) That a certain prisoner was duly committed to the charge of the accused; (b) that the prisoner escaped; (c) that the accused did not take such care to prevent escape as a reasonably prudent person, acting in the capacity in which the accused was acting, would have taken in the same or similar circumstances; and (d) that the escape was the proximate result of the neglect of the accused.

c. SUFFERING A PRISONER TO ESCAPE THROUGH DESIGN

Discussion.--See 140a and b. In law a wrongful act is designed when it is intended or when it results from conduct so shockingly and grossly devoid of care as to leave room for no inference but that the act was contemplated as an extremely probable result of the course of conduct followed. Thus, on a charge of suffering a prisoner to escape through design, evidence of gross negligence may be received as probative of design.

It sometimes happens that a prisoner has been permitted larger limits than should have been allowed, and an escape is consummated without hindrance. It does not at all follow that such an escape is to be considered as designed. The conduct of the responsible custodian is to be examined in the light of all the circumstances of the case, the gravity of the crime with which the prisoner is charged, the probability of his return, and the intention and motives of the custodian.

Proof.--(a) That a certain prisoner was duly committed to the charge of the accused; (b) a design of the accused to suffer the escape of such prisoner; and (c) that the prisoner escaped as a result of the carrying out of such design.

141. SEVENTY-FIFTH ARTICLE OF WAR.
     
     a. MISBEHAVIOR BEFORE THE ENEMY

     Discussion.--Misbehavior is not confined to acts of cowardice. It is a general term, and as here used it renders culpable under the article any conduct by an officer or soldier not conformable to the standard of behavior before the enemy set by the history of our arms. Running away is but a particular form of misbehavior specifically made punishable by this article.

     "The enemy" imports any hostile body that our forces may be opposing, such as a rebellious mob, a band of renegades, or a tribe of Indians. Whether a person is "before the enemy" is not a question of definite distance, but is one of tactical relation. For example, where accused was in the rear echelon of his battery about 12 or 14 kilometers from the front, the forward echelon of the battery being at the time engaged with the enemy, he was guilty of misbehavior before the enemy by leaving his organization without authority although his echelon was not under fire. On the other hand, an organization some distance from the front, and which is not a part of a tactical movement then going on or in immediate prospect, is not "before the enemy" within the meaning of this article.

     Under this clause may be charged any act of treason, cowardice, insubordination, or like conduct committed by an officer or soldier in the presence of the enemy.

     Proof.--(a) That the accused was serving in the presence of an enemy; and (b) acts or omissions of the accused as alleged.

     b. RUNNING AWAY BEFORE THE ENEMY

     Discussion.--See 141a.

     Proof.--(a) That the accused was serving in the presence of an enemy; and (b) that he misbehaved himself by running away.

142. EIGHTY-SECOND ARTICLE OF WAR.
     BEING A SPY

     Discussion.--The words "any person" bring within the jurisdiction of courts-martial and military commissions all persons of whatever nationality or status who may be accused of the offense denounced by the article.

     The principal characteristic of this offense is a clandestine dissimulation of the true object sought, which object is an endeavor to obtain information with the intention of communicating it to the hostile party. Thus, soldiers not wearing disguise, dispatch riders, whether soldiers or civilians, and persons in aircraft who carry out their missions openly and who have penetrated hostile lines are not to be considered spies, for the reason that, while they may have resorted to concealment, they have practiced no dissimulation.

     It is necessary to prove an intent to communicate information to the hostile party. This intent will very readily be inferred on proof of a deceptive insinuation of the accused among our forces, but this inference may be overcome by very clear evidence that the person had come within the lines for a comparatively innocent purpose, as to visit his family or that he has assumed a disguise in order to reach his own lines.

     It is not essential that the accused obtain the information sought or that he communicate it. The offense is complete with the lurking or dissimulation with intent to accomplish these objects.

     "A spy, who, after rejoining the army to which he belongs, is subsequently captured by the enemy * * * incurs no responsibility for his previous acts of espionage." (Rules of Land Warfare.)

     A person living in occupied territory who, without dissimulation, merely reports what he sees or what he hears through agents to the enemy, may be charged under A.W. 81 with communicating or giving intelligence to the enemy, but he may not be charged under this article with being a spy.

     Proof.--(a) That the accused was found at a certain place within our zone of operations, acting clandestinely, or under false pretenses; and (b) that he was obtaining, or endeavoring to obtain, information with intent to communicate the same to the enemy.

143. EIGHTY-THIRD ARTICLE OF WAR.
     SUFFERING MILITARY PROPERTY TO BE LOST, ETC.

     Discussion.--The loss, etc., may be said to be willfully suffered by one, who, knowing the loss, etc., to be imminent or actually going on, takes no steps to prevent it, as where a sentinel seeing a small and readily extinguishable fire in a stack of hay on his post allows

it to burn up. A suffering through neglect implies an omission to take such measures as were appropriate under the circumstances to prevent a probable loss, damage, etc.

The willful or neglectful sufferance specified by the article may consist in a deliberate violation or positive disregard of some specific injunction of law, regulations, or orders; or it may be evidenced by such circumstances as a reckless or unwarranted personal use of the property; causing or allowing it to remain exposed to the weather, insecurely housed, or not guarded; permitting it to be consumed, wasted, or injured by other persons; loaning it to an irresponsible person by whom it is damaged, etc. (Winthrop)

Proof.--(a) That certain military property belonging to the United States was lost, spoiled, damaged, or wrongfully disposed of in the manner alleged; (b) that such loss, etc., was suffered by the accused through a certain omission of duty on his part; (c) that such omission was willful, or negligent, as alleged; and (d) the value of the property, as alleged.

Although there may be no direct evidence that the property was military property belonging to the United States, still circumstantial evidence such as evidence that the property shown to have been lost, spoiled, damaged, or wrongfully disposed of by the accused was of a type and kind issued for use in, or furnished and intended for the military service, might warrant the court in inferring that it was such military property.

144. EIGHTY-FOURTH ARTICLE OF WAR.
     a. SELLING OR WRONGFULLY DISPOSING OF MILITARY PROPERTY

     Discussion.--The article applies to any property issued for use in the military service, and the fact that the property sold, disposed of, lost, or injured was issued to someone other than the accused is immaterial. "Clothing" includes all articles of clothing whether issued under a clothing allowance or otherwise.

     Proof.--(a) That the accused soldier sold or otherwise disposed of certain property in the manner alleged; (b) that such disposition was wrongful; (c) that the property was issued for use in the military service; and (d) the value of the property as alleged.

     Although there may be no direct evidence that the property was issued for use in the military service, still circumstantial evidence such as evidence that the property shown to have been sold or otherwise disposed of by the accused soldier was of a type and kind issued for use in the military service might warrant the court in inferring that it was so issued.

b. WILLFULLY OR THROUGH NEGLECT INJURING OR LOSING MILITARY PROPERTY

Discussion.--See 144a. A willful injury or loss is one that is intentionally occasioned. A loss or injury is occasioned through neglect when it is the result of a want of such attention to the nature or probable consequences of m act or omission as was appropriate under the circumstances.

Proof.--(a) That certain property was injured in a certain way or lost, as alleged; (b) that such property was issued for use in the military service; (c) that such injury or loss was willfully caused by the accused in a certain manner, as alleged; or that such injury or loss was the result of neglect on the part of the accused; and (d) the value of the property, as alleged. Where it is shown by either direct or circumstantial evidence that the property was issued to the accused, it may be presumed that the injury or loss shown unless satisfactorily explained was due to the neglect of the accused.

145. EIGHTY-FIFTH ARTICLE OF WAR.
     BEING FOUND DRUNK ON DUTY

     Discussion.--Under this article it is necessary that accused be found to be drunk while actually on duty, but the fact that he became drunk before going on duty while material in extenuation is immaterial on the question of guilt. A person is not found drunk on duty in the sense of this article, "if he is simply discovered to be drunk when ordered, or otherwise required, to go upon the duty, upon which, because of his condition, he does not enter at all." (Winthrop.) But the article does apply although the duty may be of a merely preliminary or anticipatory nature, such as attending an inspection by a soldier designated for guard, or an awaiting by a medical officer of a possible call for his services.

     The term "duty " as used in this article means of course military duty. But, it is important to note, every duty which an officer or soldier is legally required, by superior military authority, to execute, and for the proper execution of which he is answerable to such authority, is necessarily a military duty. (Winthrop.)

     The commanding officer of a post, or of a command, or detachment in the field in the actual exercise of command, is constantly on duty. In the case of other officers, or of enlisted men, the term "on duty " relates to duties of routine or detail, in garrison or in the field, and does not relate to those periods when, no duty being required of them by orders or regulations, officers and men occupy the status of leisure known to the service as "off duty." (See Davis.)

In time of war and in a region of active hostilities the circumstances are often such that all members of a command may properly be considered as being continuously on duty within the meaning of this article.

So, also, an officer of the day and members of the guard are on duty during their entire tour within the meaning of this article, but a sentinel found drunk on post should ordinarily be charged under A.W. 86.

The offense of a person who absents himself from his duty and is found drunk while so absent, or who is relieved from duty at a post and ordered to remain there to await orders, and is found drunk during such status, is not chargeable under this article.

Whether the drunkenness was caused by liquor or drugs is immaterial; and any intoxication which is sufficient sensibly to impair the rational and full exercise of the mental and physical faculties is drunkenness within the meaning of the article.

Proof.--(a) That the accused was on a certain duty, as alleged, and (b) that he was found drunk while on such duty. On an issue of drunkenness, admissible testimony is not confined to a description of the conduct and demeanor of the accused, and the testimony of a witness that the accused was drunk or was sober is not inadmissible on the ground that it is an expression of opinion.

146. EIGHTY-SIXTH ARTICLE OF WAR.
     a. BEING FOUND DRUNK ON POST

     Discussion.--See 145. The term "sentinel" does not include a watchman or an officer or a noncommissioned officer of the guard unless posted as such.

     A sentinel is on post within the meaning of this article not only when he is walking a duly designated sentinel's post, as is ordinarily the case in garrison, but also, for example, when he may be stationed in observation against the approach of an enemy, or on post to maintain internal discipline, or to guard stores, or to guard prisoners while in confinement or at work.

     A sentinel's post is not limited to an imaginary line, but includes, according to orders or circumstances, such contiguous area within which he may walk as may be necessary for the protection of property committed to his charge or for the discharge of such other duties as may be required by general or special orders. The sentinel who goes anywhere within such area for the discharge of his duties does not leave his post, but if found drunk or sleeping within such area he may be convicted of a violation of this article.

     The fact that the sentinel was not posted in the regular way is not a defense.

Proof.--(a) That the accused was posted as a sentinel, as alleged; and (b) that he was found drunk while on such post.
b. BEING FOUND SLEEPING ON POST

Discussion.--See 146a. The fact that the accused had been previously overtaxed by excessive guard duty is not a defense, although evidence to that effect may be received in extenuation of the offense.

Proof.--(a) That the accused was posted as a sentinel, as alleged; and (b) that he was found sleeping while on such post.

c. LEAVING POST BEFORE BEING RELIEVED

Discussion.--See 146a. The offense of leaving post is not committed when a sentinel goes an immaterial distance from the point, path, area, or object which was prescribed as his post.

Proof.--(a) That the accused was posted as a sentinel, as alleged; and (b) that he left such post without being regularly relieved.

147. EIGHTY-NINTH ARTICLE OF WAR.
     a. COMMITTING ANY WASTE OR SPOIL

     Discussion.--The terms "waste" or "spoil" as used in this article refer to such acts of voluntary destruction of or permanent damage to real property as burning down buildings, tearing down fences, cutting down shade or fruit trees, and the like.

     Proof.--(a) That the accused being with a certain command in quarters, camp, garrison, or on the march, committed waste or spoil on certain property in the manner alleged; and (b) that suck acts were not ordered by his commanding officer.

     b. WILLFULLY DESTROYING PROPERTY

     Discussion.--To be destroyed it is not necessary that the property be completely demolished or annihilated. It is sufficient if it is so far injured as to be useless for the purpose for which it was intended.

     Proof.--(a) That the accused being with a certain command in quarters, camp, garrison, or on the march, destroyed certain property, as alleged; and (b) that such destruction was willful and was not ordered by his commanding officer.

     c. COMMITTING DEPREDATION OR RIOT

     Discussion.--The term "any kind of depredation" includes plundering, pillaging, robbing, and any willful damage to property not included in the preceding specific terms of the article.

A riot is a tumultuous disturbance of the peace by three or more persons assembled together of their own authority, with the intent mutually to assist one another against anyone who shall oppose them in the execution of some enterprise of a private nature, and who afterwards actually execute the same in a violent and turbulent manner, to the terror of the people, whether the act intended was of itself lawful or unlawful. (McClain, Crim. Law.)

Proof.--That the accused being with a certain command in quarters, camp, garrison, or on the march, committed certain acts of depredation on certain property, or certain acts of rioting, as alleged.

d. REFUSING OR OMITTING TO SEE REPARATION MADE

Discussion.--Refusing to entertain a proper complaint at all; refusing or omitting to convene a board for the assessment of damage; or to act on such proceedings, or to direct the proper stoppages, are instances of this offense.

Proof.--(a) That the accused was the commanding officer of a certain command in quarters, garrison, camp, or on the march, as alleged; (b) that a complaint was duly made to him by a certain person of damage to or loss of certain property occasioned by troops of the accused's command, as alleged; and (c) that the accused either refused to see reparation made, or omitted in the manner alleged to see reparation made, to the party injured in so far as the offender's pay would go toward such reparation.

148. NINETY-SECOND ARTICLE OF WAR.
     a. MURDER

     Discussion.--"In time of peace" contemplates a complete peace, officially proclaimed. (Kahn v. Anderson, 255 U.S. 1.)

     Murder is the unlawful killing of a human being with malice aforethought. "Unlawful" means without legal justification or excuse. The death must take place within a year and a day of the act or omission that caused it, and the offense is committed at the place of such act or omission although the victim may have died elsewhere.

     Among the lesser offenses which may be included in a particular charge of murder are manslaughter, certain forms of assault, and an attempt to commit murder.

     Without legal justification.--A homicide done in the proper performance of a legal duty is justifiable. Thus, executing a person pursuant to a legal sentence of death; killing in suppressing a mutiny or in preventing the escape of a prisoner where no other possible means are adequate; killing an enemy in battle; and killing to prevent

the commission of a felony attempted by force or surprise, such as murder, burglary, or arson, are cases of justifiable homicide.

The general rule is that the acts of a subordinate officer or soldier, done in good faith and without malice in compliance with his supposed duty, or of superior orders, are justifiable, unless such acts are manifestly beyond the scope of his authority, and such that a man of ordinary sense and understanding would know to be illegal. (Wharton on Homicide.)

The foregoing principles should not be construed as conferring immunity on an officer or soldier who willfully or through culpable negligence does acts endangering the lives of innocent third parties in the discharge of his duty to prevent escape or effect an arrest.

Without legal excuse.--A homicide which is the result of an accident or misadventure in doing a lawful act in a lawful manner, or which is done in self-defense on a sudden affray, is excusable. Thus, where a lawful operation, performed with due care and skill, causes the death of the patient, the homicide is excusable. To excuse a killing on the ground of self-defense upon a sudden affray the killing must have been believed on reasonable grounds by the person doing the killing to be necessary to save his life or the lives of those whom he was then bound to protect or to prevent great bodily harm to himself or them. The danger must be believed on reasonable grounds to be imminent, and no necessity will exist until the person, if not in his own house, has retreated as far as he safely can. To avail himself of the right of self-defense the person doing the killing must not have been the aggressor and intentionally provoked the difficulty; but if after provoking the fight he withdraws in good faith and his adversary follows and renews the fight, the latter becomes the aggressor.

Malice aforethought.--Malice does not necessarily mean hatred or personal ill-will toward the person killed, nor actual intent to take his life, or even to take anyone's life. The use of the word "aforethought" does not mean that the malice must exist for any particular time before commission of the act, or that the intention to kill must have previously existed. It is sufficient that it exist at the time the act is committed. (Clark.)

Malice aforethought may exist when the act is unpremeditated. It may mean any one or more of the following states of mind preceding or coexisting with the act or omission by which death is caused: An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not (except when death is inflicted in the heat of a sudden passion, caused by adequate provocation); knowledge that the act which causes death will probably cause the death of, or grievous bodily

harm to, any person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or by a wish that it may not be caused; intent to commit any felony. (See 149d--Burglary.) An intent to oppose force to an officer or other person lawfully engaged in the duty of arresting, keeping in custody, or imprisoning any person, or the duty of keeping the peace, or dispersing an unlawful assembly, provided the offender has notice that the person killed is such officer or other person so employed. (Clark.)

Proof.--(a) That the accused killed a certain person named or described by certain means, as alleged (this involves proof that the person alleged to have been killed is dead; that he died in consequence of an injury received by him; that such injury was the result of the act of the accused; and that the death took place within a year and a day of such act); and (b) that such killing was with malice aforethought.

In trials for murder and manslaughter.--The law recognizes an exception to the rule rejecting hearsay by allowing the dying declarations of the victim of the crime, in regard to the circumstances which have induced his present condition, and especially as to the person by whom the violence was committed, to be detailed in evidence by one who has heard them. It is necessary, however, to the competency of testimony of this character-and it must be proved as preliminary to the proof of the declaration--that the person whose words are repeated by the witness should have been in extremis and under a sense of impending death, i.e., in the belief that he was to die soon; though it is not necessary that he should himself state that he speaks under this impression, provided the fact is otherwise shown. And if this belief on his part sufficiently appears, it is not essential to the admissibility of his words that death should have immediately followed upon them. On the other hand if, in uttering the words, he was under the impression that he should recover, the same would be inadmissible even if in fact he presently died. But it is no objection to their admissibility that they were brought out in answer to leading questions, or upon urgent solicitations addressed to him by any person or persons; and if, instead of speaking, he answered the questions by intelligible signs, these signs may equally be testified to. But it is held that only such declarations are admissible as would be admitted if the party were himself a witness; so that where the language employed is irrelevant or consists in a statement of opinion instead of fact, it can not be received. If it was put in writing at the time, the writing should be

produced. Dying declarations are admissible as well in favor of the accused as against him.

It is to be remarked that evidence of dying declarations is usually to be received with great caution, since such declarations are usually made under circumstances of mental and physical depreciation, and without being subjected to the ordinary legal tests. (Winthrop.)

b. RAPE

Discussion.--Rape is the unlawful carnal knowledge of a woman by force and without her consent.

Any penetration, however slight, of a woman's genitals is sufficient carnal knowledge, whether emission occurs or not.

The offense may be committed on a female of any age.

Force and want of consent are indispensable in rape; but the force involved in the act of penetration is alone sufficient where there is in fact no consent.

Mere verbal protestations and a pretense of resistance are not sufficient to show want of consent, and where a woman fails to take such measures to frustrate the execution of a man's design as she is able to, and are called for by the circumstances, the inference may be drawn that she did in fact consent.

It has been said of this offense that "it is true that rape is a most detestable crime * * *; but it must be remembered that it is an accusation easy to be made, hard to be proved, but harder to be defended by the party accused, though innocent."

So-called statutory rape--that is, carnal knowledge with her consent of a female under the age of consent--is not an offense under this article, but may be an offense under A.W. 96.

Among the lesser offenses which may be included in that of rape, are assault with intent to commit rape, assault and battery, assault, and an attempt to commit rape.

Proof.--(a) That the accused had carnal knowledge of a certain female, as alleged, and (b) that the act was done by force and without her consent.

149. NINETY-THIRD ARTICLE OF WAR.
     a. MANSLAUGHTER

     Discussion.--See 148a. Manslaughter is unlawful homicide without malice aforethought and is either voluntary or involuntary. Voluntary manslaughter is where the act causing the death is committed in the heat of sudden passion caused by provocation. Involuntary manslaughter is homicide unintentionally caused in the commission of an unlawful act not amounting to a felony, nor

likely to endanger life, or by culpable negligence in performing a lawful act, or in performing an act required by law. (Clark.)

The law recognizes the fact that a man may be provoked to such an extent that in the heat of sudden passion, caused by the provocation, and not from malice, he may strike a blow before he has had time to control himself, and therefore does not in such a case punish him as severely as if he were guilty of a deliberate homicide.

In voluntary manslaughter the provocation must be such as the law deems adequate to excite uncontrollable passion in the mind of a reasonable man; the act must be committed under and because of the passion, and the provocation must not be sought or induced as an excuse for killing or doing bodily harm. (Clark.)

The killing may be manslaughter only, even if intentional; but where sufficient cooling time elapses between the provocation and the blow the killing is murder, even if the passion persists. Instances of adequate provocation are: Assault and battery inflicting actual bodily harm, an unlawful imprisonment, and the sight by a husband of an act of adultery committed by his wife. If the person so assaulted or imprisoned, or the husband so situated at once kills the offender or offenders in a heat of a sudden passion caused by their acts, manslaughter only has been committed.

Instances of inadequate provocation are: Insulting or abusive words or gestures, trespass or other injuries to property, and breaches of contract.

In involuntary manslaughter in the commission of an unlawful act, the unlawful act must be evil in itself by reason of its inherent nature and not an act which is wrong only because it is forbidden by a statute or orders. Thus the driving of an automobile in slight excess of a speed limit duly fixed, but not recklessly, is not the kind of unlawful act contemplated, but voluntarily engaging in an affray is such an act. To use an immoderate amount of force in suppressing a mutiny is an unlawful act, and if death is caused thereby the one using such force is guilty of manslaughter at least.

Instances of culpable negligence in performing a lawful act are: Negligently conducting target practice so that the bullets go in the direction of an inhabited house within range; pointing a pistol in fun at another and pulling the trigger, believing, but without taking reasonable precautions to ascertain, that it would not be discharged; carelessly leaving poisons or dangerous drugs where they may endanger life.

Where there is no legal duty to act there can, of course, be no neglect. Thus where a stranger makes no effort to save a drowning man, or a person allows a mendicant to freeze or starve to death, no crime is committed.

Among the lesser offenses which may be included in a particular charge of voluntary manslaughter are the various forms of assault and an attempt to commit manslaughter.

Proof.--(a) Item (a) under proof, 148a; and (b) the facts and circumstances of the case, as alleged, indicating that the homicide amounted in law to manslaughter.

As to dying declarations see 148a under proof.

b. MAYHEM

Discussion.--Mayhem is a hurt of any part of a man's body whereby he is rendered less able, in fighting, either to defend himself or to annoy his adversary. (Bishop.)

Thus it is mayhem to put out a man's eye, to cut off his hand, or his foot or finger, or even to knock out a front tooth, as these are members which he may use in fighting; but it is otherwise if either the ear or nose is cut off or a back tooth knocked off, as these injuries merely disfigure him. (Clark.)

To constitute mayhem the injury must be willfully and maliciously done, but need not be premeditated. If the hurt is done under circumstances which would excuse or justify homicide, no offense is committed. A person inflicting such a hurt upon himself is guilty of this offense; and if another does it at his request, both are so guilty.

Among the lesser offenses included in a particular charge of mayhem are assault with intent to commit mayhem, assault and battery, assault, and an attempt to commit mayhem.

Proof.--(a) That the accused inflicted on a certain person a certain injury in the manner alleged; and (b) the facts and circumstances of the act showing such injury to have been inflicted intentionally and maliciously.

c. ARSON

Discussion.--Arson is the willful and malicious burning of the dwelling house or outhouse of another. (Clark.) The offense is against the habitation of another rather than against his property. The term "dwelling house" includes outbuildings that form part of the cluster of buildings used as a residence. A shop or store is not the subject of arson unless occupied as a dwelling. It is not arson to burn a house that has never been occupied or which has been permanently abandoned; but it is arson if the occupant is merely temporarily absent. It is not arson for a tenant to burn the dwelling in which he lives although it is the property of another, but the legal owner of a house which is in the rightful occupancy of another

may be guilty of arson in burning it. It is not arson to burn the dwelling of another at his request.

To constitute a burning some part, however small, of the house must be actually consumed or disintegrated by the heat, but a mere scorching is not a burning.

Proof.--(a) That the accused burned a certain dwelling house of another, as alleged; and (b) facts and circumstances indicating that the act was willful and malicious.

d. BURGLARY Discussion.--Burglary is the breaking and entering, in the night, of another's dwelling house, with intent to commit a felony therein. (Bishop.)

The term "felony" includes, among other offenses so designated at common law, murder, manslaughter, arson, robbery, rape, sodomy, mayhem, and larceny (irrespective of value). It is immaterial whether the felony be committed or even attempted, and where a felony is actually intended it is no defense that its commission was impossible.

To constitute burglary the house must be a dwelling house of another, the term "dwelling house" including outhouses within the curtilage or the common inclosure. (Clark & Marshall.)

A store is not a subject of burglary unless part of, or used also as, a dwelling house, as where the occupant uses another part of the same building as his dwelling, or where the store is habitually slept in by his servants or members of his family.

The house must be in the status of being occupied at the time of the breaking and entering. It is not necessary to this status that anyone actually be in it; but if the house has never been occupied at all or has been left without any intention of returning to it this status does not exist. Separate dwellings within the same building, as a flat in an apartment house or a room in a hotel, are subjects of burglary by other tenants or guests, and in general by the owner of the building himself. A tent is not a subject of burglary.

There must be a breaking, actual or constructive. Merely to enter through a hole left in the wall or roof or through an open window or door, even if left only slightly open and pushed farther open by the person entering, will not constitute a breaking; but where there is any removal of any part of the house designed to prevent entry, other than the moving of a partly open door or window, it is sufficient. Thus opening a closed door or window or other similar fixture, or cutting out the glass of a window or the netting of the screen is a sufficient breaking. So also the breaking of an inner door by one who has entered the house without breaking, or by a servant lawfully