Chapter V.
Courts-martial--Procedure before trial

Arrest and Confinement--Arrest of Deserter by Civilians

18. COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Arrest and Confinement--Scope of paragraphs on this subject.--The paragraphs on this subject deal primarily with the arrest or confinement of persons subject to military law in connection with trial by court-martial, and deal incidentally only or not at all with arrest and confinement of such persons for other purposes, with the arrest and confinement of persons not subject to military law, and with various other matters touching arrest and confinement such as those discussed in 138, 139, and 140. See in this connection AR 600-355,600-375.

19. COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Arrest and Confinement--General and miscellaneous.--Any person subject to military law charged with crime or with a serious offense under the Articles of War shall be placed in confinement or in arrest as circumstances may require; but when charged with a minor offense only, such person shall not ordinarily be placed in confinement. (A.W. 69.) This requirement is not mandatory. Arrest or confinement may, in the interest of the Government, be deferred until arraignment, and failure to arrest or confine does not affect the jurisdiction of the court.

    No person will be placed in arrest or confinement under the authority of A.W. 69 except on personal knowledge of, or after inquiry into, his offense. The character and duration of the restraint imposed before and during trial, and pending final action upon the case, will be the minimum necessary under the circumstances. For instance, upon notification from a trial judge advocate as to the result of trial (see 41b), a commanding officer should take prompt and appropriate action with respect to the restraint of the person tried. Such action, depending on the circumstances, may include, for example, the release of such person from any restraint, or the imposition of any necessary restraint pending final action on the case.

    If pending trial of or final action upon a case, an order affecting the accused is received, the commanding officer may, to the extent he deems necessary, and irrespective of whether the accused is under any restraint, suspend the order so far as it affects the accused; provided

it is reasonably apparent that the authority issuing the order was not aware of the pending proceedings, and that had he been so aware he would not have issued the order as it stands. Any suspension of an order will be duly and promptly reported to the proper authority.

The right of the United States to arrest and bring to trial a deserter is paramount to any right of control over him by a parent on the ground of his minority. See 157 (Brief in habeas corpus case).

20. COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Arrest and Confinement--Who may order; method.--The following classes of per-sons subject to military law will be placed in arrest or confinement under A.W. 69, as follows:

    Enlisted Men.--By officers only, in person, through other persons subject to military law, or by oral or written orders or communications. The commanding officer of any company or detachment may delegate to the noncommissioned officers thereof authority to place enlisted men belonging to his company or detachment, or temporarily within its jurisdiction, e.g., in his quarters or camp, in arrest or confinement as a means of restraint at the instant when restraint is necessary.

    Officers, Members of the Army Nurse Corps, Warrant Officers.--By commanding officers only, in person, through other officers, or by oral or written orders or communications. The authority to place such persons in arrest or confinement will not be delegated. Subject to such limitations as may be imposed by superior competent authority the term "commanding officer" includes the commanding officer of a garrison, fort, camp, or other place where troops are on duty and the commanding officer of a regiment, detached battalion, detached company, or other detachment, and their superiors.

    For reports, etc., required in case of confinement or arrest and for action required when a commanding officer places an officer in arrest or confinement without preferring charges, see AR 600-355.

21. COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Arrest and Confinement--Status of person in arrest.--Any person placed in arrest under the provisions of A.W. 69 shall thereby be restricted to his barracks, quarters, or tent, unless such limits shall be enlarged by proper authority. (A.W. 69.)

    For other restrictions see AR 600-355.

22. COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Arrest of Deserter by Civilians--Civil officers.--It shall be lawful for any civil officer having authority under the laws of the United States, or of any State, Territory, District, or possession of the United States, to arrest offenders, summarily to arrest a deserter from the military service of

the United States and deliver him into the custody of the military authorities of the United States. (A.W. 106.)
23. COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Arrest of Deserter by Civilians--Civilians generally.--A private citizen has no authority as such, without the order or direction of a military officer, to arrest or detain a deserter from the Army of the United States (Kurtz v. Moffitt, 115 U.S. 487); but sending out a description of a deserter with a request for his arrest and the offer of a reward for his apprehension and delivery, coupled with the provisions of law and regulations authorizing the payment of such reward, is sufficient authority for the arrest of a deserter by a private citizen.

    The fact that the person who arrested and delivered a deserter was not authorized to do so is not a legal ground for the deserter's discharge from military custody.

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