[C. M. O. 6--1916]

Pay Clerk Thomas J. Bolan, United States Navy, was tried by general court martial January 26, 1916, on board the U. S. S. Delaware, at sea, by order of the Commander in Chief, United States Atlantic Fleet, and found guilty of the following charge, the specification of which was "proved by plea." Charge. Drunkenness on duty (one specification).

SENTENCE

"The court does therefore sentence him, the said Pay Clerk Thomas J. Bolan, U. S. Navy, to lose twenty-five dollars ($25) per month of his pay for a period of six (6) months."

RETURNED FOR REVISION

The convening authority on February 11, 1916, returned the record of proceedings to the general court martial in this case, with the direction that the court reconvene for the purpose of correcting clerical errors in the record and reconsidering the sentence since in his opinion the sentence was inadequate. The convening authority stated in part: "The accused pleaded guilty to the offense of 'Drunkenness on duty' and offered no evidence in extenuation thereof. The convening authority is of the opinion, under the circumstances, that the sentence is insufficient."

[P. 2] FORMER SENTENCE ADHERED TO

The court in revision complied with the directions of the convening authority with regard to correction of clerical errors but "decided respectfully to adhere to its former sentence."

ACTION OF CONVENING AUTHORITY

The convening authority, on February 16, 1916, placed the following action on the record of proceedings:

(1) "It is noted in the record of proceedings in revision of the general court martial in the foregoing case of Pay Clerk Thomas J. Bolan, United States Navy, that the record of the action of the court in adhering to its former sentence is typewritten. This should have been in the handwriting of the judge advocate (Forms of Procedure, 1910, p. 51, changes dated July 10, 1914; see also Index-Digest, 1914, pp. 34, 38).

"It is also noted that the court did not follow the procedure prescribed in articles 804 (3) and 809, Navy Regulations, 1913, in that the judge advocate was not recalled to record the findings separately. (See also Index-Digest, 1914, pp. 20, 26.)

"These errors of procedure, while irregular, do not invalidate the sentence. (2) "Subject to these remarks, the proceedings, proceedings in revision, and the findings are approved. The sentence is considered to be inadequate, but in order that the accused may not entirely escape punishment, it is approved. Pay Clerk Bolan will be released from arrest and restored to duty." (See Index-Digest, 1914, p. 11; C. M. O. 14, 1915; 17, 1915; 43. 1915.)

RECOMMENDATION OF CHIEF OF BUREAU OF NAVIGATION

The Chief of the Bureau of Navigation placed on the record the following indorsement:

"Returned. This Bureau concurs in the opinion of the convening authority and the Judge Advocate General relative to the inadequacy of the sentence, and recommends that the president and members of the court be informed that their action in this case has resulted in a miscarriage of Justice."

ACTION OF SECRETARY OF THE NAVY

(3) The Secretary of the Navy concurred in the opinion of the convening authority relative to the inadequacy of the sentence adjudged in this case, and in accordance with the recommendation of the Bureau of Navigation so informed the president and members of the court by letter.

[C. M. O. 6-1916]

[P. 3] REMARKS

The convening authority in returning the record for revision called the attention of the court to the following irregularities:

(4) The letter from the convening authority to the commanding officer of the accused, transmitting to him for delivery to the accused a copy of the charges and specifications was appended to the record marked "B," and had been read to the court. This letter has no place in the record, should not be read to the court, and should not even come into the possession of the judge advocate (Forms of Procedure, 1910, p. 56; Index-Digest, 1914, pp. 27, 33). The letter of transmittal (transmitting the charges and specifications to the judge advocate) in this case was on the same sheet of paper as the charges and specifications. Accordingly, the entry given on page 22 of the Forms of Procedure, 1910, should have been slightly modified to fit the circumstances, being changed to read, "The judge advocate read the letter of transmittal, and the charge and specification, original prefixed, marked 'B,' and arraigned the accused," etc.

(5) That an exhibit marked “E” was incomplete, not having the proper signature thereon, and therefore not a true copy. (See C. M. O. 17, 1910, p. 3; 23, 1910, p. 3; 27, 1913, p. 12.)

(6) That the procedure prescribed in Forms of Procedure, 1910, page 41, and Navy Regulations, 1913, R-804 (3), was not followed, in that it is not shown in the record of the original proceedings that the court was cleared while voting upon the sentence. The record of proceedings in revision divulges that the judge advocate was not called before the court and directed to record its findings before the court deliberated upon the sentence. By such a course of procedure the judge advocate is precluded, if occasion arises, from advising the court upon any possible irregularity in the findings before the court proceeds to sentence the accused (Index-Digest, 1914, pp. 20, 26).

In reviewing the record of proceedings the Department observed the following additional errors:

(7) The judge advocate in recording the findings made an error in writing a word and attempted to correct the mistake by writing the word "by" over what he had first written. While this is neither an "erasure" nor an "interlineation" it is as objectionable an alteration as either. If the judge advocate makes a mistake in recording the finding he should rewrite the whole page. (See Forms of Procedure, 1910, p. 40; C. M. O. 55, 1910, p. 8.)

(8) The judge advocate having made a mistake in writing a word in the sentence, attempted to correct his error by writing the word "dollars" over what he had first written there. If the judge advocate makes a mistake in recording the sentence [P. 4] he should rewrite the whole page. (See Forms of Procedure, 1910, p. 43; C. M. O. 35, 1915, p. 7; G. C. M. Rec. No. 23760.)

(9) The sentence was not expressed in the phraseology outlined in the Forms of Procedure, 1910, p. 42. The members of the court, as well as the judge advocate, should always remember that "while the phraseology used [in the Forms of Procedure] need not be absolutely adhered to" (Forms of Procedure, 1910, p. 3) it should not be departed from unless there is a very good reason for doing so.

(10) These errors in procedure seem to indicate negligence and carelessness on the part of the court and of the judge advocate, are most reprehensible, and go far to defeat the objects for which naval courts martial are intended (C. M. O. 36, 1905, p. 3).

As heretofore remarked in court martial orders, the members of the court, as well as the judge advocate, are responsible for errors of the above character appearing in the records of proceedings (C. M. O. 55, 1910, pp. 9-10; 14, 1913, p. 5; 27, 1913, p. 12; 17, 1915, p. 2).

(11) It was noted that the action of the convening authority contained the words "in revision." In this case the words "proceedings in revision" should have been omitted thus making the action cover the whole of the proceedings, both original and in revision and conforming to the established phraseology (Forms of Procedure, 1910, p. 52; C. M. O. 23, 1910, p. 3; 4, 1916, p. 5).

C. M. 0. 7—1916

[P. 1] CONFIDENTIAL PUBLICATION: OFFICER TRIED BY GENERAL COURT

MARTIAL FOR LOSS OF.

Lieutenant (junior grade) Herbert A. Jones, United States Navy, was tried by general court martial February 11, 1916, on board the U. S. S. Oregon, at San Francisco, Calif., by order of the Secretary of the Navy, and found guilty of the following charge:

Charge. Culpable negligence and inefficiency in the performance of duty (one specification alleging loss of a confidential publication).

SENTENCE

"The court, therefore, sentences him, Herbert A. Jones, lieutenant (Junior grade), United States Navy, to lose one hundred (100) numbers in his grade."

ACTION OF SECRETARY OF THE NAVY

The proceedings, findings, and sentence of the general court martial in the foregoing case of Lieutenant (junior grade) Herbert A. Jones, U. S. Navy, are approved.

The Department, after mature consideration and having in mind the gravity of the offense of which this officer was found guilty, does not consider the sentence adjudged by the court to be excessive. The necessity of enjoining upon officers the greatest care in safeguarding confidential publications of this nature is one which must be manifest to all officers. In the execution of such an important military trust the Department cannot accept a general intention as suffi cient but must require an extreme degree of actual care. Owing to the failure of Lieutenant Jones to exercise such care it becomes necessary for the Department to undergo the labor and expense of issuing to the service a new battle signal book. The negligence of this officer makes the present book no longer useful in serving the purpose for which it is intended and has the same consequential result as the destruction of the entire edition of this book. The court has properly found Lieutenant Jones guilty of culpable negligence and inefficiency in performing his duty of safeguarding this most important confidential publication. Lieutenant [P. 2] Jones was in command of a vessel of the Navy and was intrusted with this publication as a necessary instrument in the exercise of his command. It is needless to comment further upon the department's position in considering that it is entitled to expect from commanding officers more diligence than that shown by Lieutenant Jones in the protection of the confidential character of a book so vital to the welfare of the service. C. M. O. 20, 1909; 12, 1910.)

Lieutenant Jones will be released from arrest and restored to duty.

C. M. O. 8-1916

(See

[P. 1] CONFIDENTIAL PUBLICATION: OFFICER TRIED BY GENERAL COURT MARTIAL FOR LOSS OF.

Ensign Robert D. Kirkpatrick, United States Navy, was tried by general court martial February 11, 1916, on board the U. S. S. Oregon, at San Francisco, Calif., and found guilty of the following charge, the specification of which was proved by plea :

Charge. Culpable negligence and inefficiency in the performance of duty (one specification alleging loss of a confidential publication).

SENTENCE

"The court, therefore, sentences him, Robert D. Kirkpatrick, ensign, United States Navy, to lose one hundred (100) numbers in his grade."

ACTION OF SECRETARY OF THE NAVY

The proceedings, findings, and sentence, of the general court martial in the foregoing case of Ensign Robert D. Kirkpatrick, U. S. Navy, are approved.

[C. M. O. 9-1916]

The Department after mature consideration and having in mind the gravity of the offense of which this officer was found guilty does not consider the sentence adjudged by the court to be excessive. The necessity of enjoining upon officers the greatest care in safeguarding confidential publications of this nature is one which must be manifest to all officers. In the execution of such an important military trust the department cannot accept a general intention as sufficient but must require an extreme degree of actual care. Owing to the failure of Ensign Kirkpatrick to exercise such care it becomes necessary for the Department to undergo the labor and expense of issuing to the service a new battle signal book. The negligence of this officer makes the present book no longer useful in serving the purpose for which it is intended and has the same consequential result as the destruction of the entire edition of this book. The court has properly found Ensign Kirkpatrick guilty of culpable negligence and inefficiency in performing his duty of safeguarding this most important confidential publication. Ensign Kirkpatrick found it necessary to take possession of the publication in question in the scope of his official duties. That upon taking such possession he assumed a responsibility to properly care for same is not open to question. Nor is it considered necessary to comment further upon the Department's position in exacting from officers using battle signal books more diligence [P. 2] than that shown by Ensign Kirkpatrick in the protection of the confidential character of a book so vital to the welfare of the service. (See C. M. O. 20, 1909; 12, 1910; 7, 1916.)

Ensign Kirkpatrick will be released from arrest and restored to duty.

C. M. 0.9—1916

[P. 5] FINDINGS AND SENTENCE: ERRORS IN-ALIAS NOT RECORDED.

In reviewing the record in the general court-martial case of John M. Casey, fireman second class, U. S. Navy, alias Edward Sheehan, formerly private, U. S. Army, who was tried at the Navy Yard, New York, by order of the Secretary of the Navy, it was noted that in the findings and sentence the alias of the accused was omitted.

The court, in revision, properly made the above correction of its findings and sentence (G. C. M. Rec. No. 31812).

JURISDICTION: NAVAL COURT MARTIAL MAY TRY PERSON SUBJECT TO ITS JURISDICTION FOR ANY OFFENSE COMMITTED IN THE SCOPE OF LEGALLY ASSIGNED DUTIES. The record of the general court martial in the case of Sergeant John D. Lockburner, U. S. Marine Corps, who was tried by order of the Commandant of the Naval Station, Guam, shows that the accused, when arraigned, entered a plea to the jurisdiction of the court based, inter alia, upon the grounds that the offenses alleged against him were not military charges but were founded upon an alleged viola [P. 6] tion of the laws of Guam; and that any crime for which he could be tried must be a military offense. The court sustained the plea to the jurisdiction and submitted the record to the convening authority, who directed the trial to proceed.

The plea of the accused to the jurisdiction in this case was without foundation. The decisions of courts show that the essential features, in addition to being legally constituted, to give a general court-martial jurisdiction in a case similar to that of Lockburner's are (a) that an accused shall belong to an organization whose members are subject to trial by a naval court martial, and (b) that the offense alleged against him must be one recognized by either the laws regulating civil society or the laws for the government of military forces. (Ex parte Mason, 105 U. S. 700; Smith v. Whitney, 116 U. S. 183; Ex parte Milligan, 4 Wall. 123.) In this case the accused was charged with having aided in the violation of the liquor laws of Guam, which laws it was his duty, as acting chief of police of that island, to enforce. There can be no question as to the jurisdiction over the person of the accused, nor did the accused contend that the act committed by him was not in violation of the duly authorized laws of the island of Guam. Inasmuch as the offense with which the accused was charged was committed in the scope of his duties as acting chief of police of Guam, and as this duty was

[C. M. O. 9-1916]

assigned by competent authority and was a duty which could legally be assigned to the accused, there can be no doubt but that his misconduct in the execution of such duty constituted a military delinquency and as such came under the cognizance of a naval court martial the same as would an offense committed by the accused in the course of duties ordinarily prescribed. (See 6 Op. Atty. Gen. 415; G. C. M. Rec. No. 31819.)

1. WITNESSES: CREDIBILITY OF APPEARANCE AND MANNER OF TESTIFYING. 2. PLEA OF “GUILTY”: EVIDENCE INCONSISTENT WITH-PROCEDURE.

(1) In the general-court-martial case of Harry A. Hardy, private, U. S. Marine Corps, who was tried by order of the Commander of Cruiser Squadron and Commander in Chief, Detached Squadron, U. S. Atlantic Fleet, the accused pleaded "not guilty" to the charge of "robbery." The testimony of one witness for the prosecution, if worthy of belief, was sufficient to establish a prima facie case for the prosecution, which, if not rebutted by the accused, would sustain a conviction. The testimony of this witness was not rebutted by the defense, but the court found the accused "not guilty" of this charge. The only ground on which the court's finding can be sustained, therefore, is that the court did not believe the testimony of the witness for the prosecution, notwithstanding the fact that her testimony was not contradicted by the defense and that no attempt was made to impeach her character for truth and veracity. On this matter of the credibility of a witness there is a decision of [P. 7] the Supreme Court, which has been applied by the Federal courts to evidence in criminal cases to the effect that, in the absence of direct evidence contradicting the testimony of particular witnesses, nevertheless it is for the jury to determine their credibility by considering the reasonableness of their statements and the manner in which they gave their testimony. It has been held that the reasonableness of testimony may be considered by a court of appeals, but that the manner in which it was given cannot be, of course, correctly portrayed (Quock Ting v. U. S., 140 U. S. 417, 420, 421; Norton v. U. S., 205 Fed. Rep. 593, 601).

In the case of Hardy, so far as the record discloses, the testimony given by the witness for the prosecution was reasonable. However, inasmuch as the Department is not aware of the manner in which the testimony was given nor of the appearance of the witness on the stand, and it is possible that the court did not believe the testimony of this witness and there were no other witnesses for the prosecution, the Department did not set aside the court's finding on this charge. It is, however, to be emphasized that as a general rule the uncontradicted testimony of a witness who is not impeached should be accepted as establishing the point concerning which such testimony is given, where it is not in itself improbable, and that only in exceptional cases should such testimony be rejected. In other words, the court is not warranted in rejecting the testimony of a witness under such circumstances merely upon fanciful grounds, but there must be very substantial reasons which impel the court to disbelieve the witness who is purporting to testify concerning matters of personal knowledge and of which the court is presumably ignorant, except as disclosed by the evidence.

(2) Upon the second charge, namely, "drunkenness," Hardy pleaded "guilty." During the trial a witness, called by the accused with reference to the charge of "robbery," was asked the question, "when the accused was up before you on the night in question, was he drunk, disorderly, or creating a disturbance," to which the witness answered "no." The judge advocate did not cross-examine this witness, and the record shows that the court did not desire to question him. The witness for the defense did not state at what hour the accused was brought before him, and his testimony was, therefore, not necessarily contradictory of the plea of the accused that he was guilty of "drunkenness" at the time specified. Nevertheless, this testimony, received without any attempt being made to reconcile it with the plea of the accused, was on its face sufficiently inconsistent with that plea to make it the duty of the court immediately to instruct the accused that he might withdraw his plea of "guilty" and substitute therefor the plea of "not guilty," and if he persisted in his plea of "guilty" to direct the entering of a plea of "not guilty" to the charge of "drunkenness," and the proceeding with the trial by the introduction of evidence, which the judge advocate was informed existed, [P. 8] to prove the allegations set forth in the speci