[C. M. O. 40-1918] C. M. O. 39-1918 [P. 1] Lieutenant (junior grade) (T) Donald McDonald (M) U. S. Navy, was tried by general court martial on April 5, 1918, on board the U. S. S. New Jersey, by order of the Commander, Battleship Force One, U. S. Atlantic Fleet, on the following charge: Charge.-Drunkenness on duty (one specification). FINDING The court acquitted the accused of the charge. ACTION OF THE CONVENING AUTHORITY The convening authority on April 26, 1918, approved the proceedings, finding, and acquittal of the general court martial in the foregoing case of Lieutenant (junior grade) (T) Donald McDonald (M), U. S. Navy, subject to certain remarks concerning irregularities in the record, and directed that he be released from arrest and restored to duty. REMARKS The following among other irregularities which showed a lack of attention to details were noted by the convening authority: The front cover sheet contained the notation "Copy furnished," but the receipt of the accused for said copy was not appended to the record, as required by Naval Courts and Boards, 1917, section 369. The front cover sheet bore the date April 5-6, 1918. The date should have been the date when the court first convened for the case. See Naval Courts and Boards, 1917, section 85. The record contained notations to the effect that two witnesses were cautioned by the president of the court as to the solemn nature of their oaths. In addition to said notations, the record should have shown the reasons and necessity for said cautions with sufficient detail to enable the reviewing authority to intelligently review those parts of the record. C. M. O. 40-1918 [P. 1] Lieutenant Harry S. Lyons, U. S. Naval Reserve Force, was tried by general court martial on April 2, 1918, at the Navy Yard, New York, by order of the Secretary of the Navy, and found guilty of the following charge: Charge.-Absence from station and duty without leave (one specification). SENTENCE "The court therefore sentences him, Harry S. Lyons, lieutenant, United States Naval Reserve Force, to be restricted to the limits of the post, station, or ship to which he may be attached for a period of thirty (30) days." RECOMMENDATION TO CLEMENCY The following recommendation to clemency signed by four of the five members of the court was spread upon the record: "In consideration of the fine character given Lieutenant Harry S. Lyons in the testimony and letters; his reputation and standing on the Great Lakes, as a commander and manager of merchant ships; his strenuous efforts as executive of the U. S. S. Jupiter during the excessively cold weather of the past winter, whereby several transports were coaled in time to sail, though stevedores refused to work, with resulting official commendation by the supply officer, we recommend Lieutenant Harry S. Lyons, U. S. Naval Reserve Force, to the clemency of the reviewing authority." [C. M. O. 42—1918] RETURNED FOR REVISION On April 18, 1918, the Department returned the record of the proceedings in the foregoing case to the court, and directed that the court reconvene for the purpose of reconsidering its sentence, which, in the opinion of the Department, was inadequate to the offense found proved. [P. 2] SENTENCE IN REVISION The court reconvened in April 23, 1918, and decided to revoke its former sentence, and substituted therefor the following: "The court therefore sentences him, Harry S. Lyons, lieutenant, United States Naval Reserve Force, to be dismissed from the United States Naval service." RECOMMENDATION OF THE CHIEF OF THE BUREAU OF NAVIGATION The record in the foregoing case was referred to the Chief of the Bureau of Navigation, who, on May 2, 1918, recommended the approval of the proceedings, findings, and sentence, and further recommended that in view of the recommendation to clemency and of the other circumstances, that the sentence be mitigated to the loss of $50 a month for six months. ACTION OF THE SECRETARY OF THE NAVY The proceedings, findings, and sentence of the general court martial in the foregoing case of Lieutenant Harry S. Lyons, U. S. Naval Reserve Force, are approved, but in view of the recommendation of the Bureau of Navigation, the sentence is mitigated to the loss of $50 a month for six months. He will be released from arrest and restored to duty. REMARKS There was nothing in the record in the foregoing case to indicate that the accused authorized an admission made by his counsel, and it can only be assumed that such was made by his implied authority, in that he was present and made no objection. It was clearly the duty of the court when this admission was made to put to the accused such questions as would insure that he assented to the action of his counsel, and the record should show said assent. The court also allowed the introduction in evidence of certain letters, testimonials as to previous good character of the accused. Such procedure was improper (even had these letters been properly identified), but in this case did not affect the interests of the accused adversely. The court should have excluded these letters and directed that such testimonials be forwarded [P. 3] by the judge advocate to the Department for the consideration of the reviewing authority. (See Naval Digest, 1916, p. 333, sec. 17.) C. M. O. 42-1918 [P. 1] Ensign (T) Thomas F. Morris (M), U. S. Navy, was tried by general court martial on April 2, 1918, on board the U. S. S. Alabama, by order of the Commander, Battleship Force One, U. S. Atlantic Fleet, on the following charge: Charge. Neglect of duty (two specifications). FINDINGS The court found the first specification of the charge "proved," the second specification of the charge "proved in part," and the accused guilty of the charge. SENTENCE "The court therefore sentences him, Ensign (T) Thomas F. Morris (M), U. S. Navy, to lose twenty (20) numbers in his grade." [C. M. O. 46-1918] ACTION OF THE CONVENING AUTHORITY The convening authority, on April 26, 1918, placed an endorsement on the record in the foregoing case in part as follows: "Since the sentence in this case, consisting of loss of numbers, is practically without any effect, and is not a substantial punishment, the convening authority is of the opinion that a sentence of the nature outlined in Naval Courts and Boards, 1917, page 362, variation 4, would have been a better one for the court to have adjudged. The convening authority will not reconvene the court for a revision of the sentence, since to do so would take high ranking officers from their duties and cause considerable inconvenience and loss to the naval service. "Subject to the above remarks, the proceedings, findings, and sentence of the general court martial in the foregoing case of Ensign (T) Thomas F. Morris (M), U. S. Navy, are approved. He will be released from arrest and restored to duty." C. M. O. 46-1918 [P. 1] Assistant Surgeon William E. Beatty, U. S. Navy, was tried by general court martial on April 22, 1918, at Base Seven, by order of the Commander Patrol Force, U. S. Atlantic Fleet, on the following charges: Charge I.-Violation of the 90th article of war (one specification). FINDINGS The court acquitted the accused of the charges. RETURNED FOR REVISION The convening authority, on April 25, 1918. returned the record in the foregoing case to the court and directed that the court reconvene for the purpose of reconsidering its findings on the first charge and the acqittal. In the opinion of the convening authority the finding on the first charge and the specification thereunder was not in accord with the evidence adduced. ACTION IN REVISION The court reconvened on April 26, 1918, and decided "respectfully to adhere to its former findings and acquittal." ACTION OF THE CONVENING AUTHORITY On April 29, 1918, the convening authority placed an endorsement on the record in the foregoing case in part as follows: "Upon proceedings in revision the court has seen fit to adhere to its former finding and acquittal of the accused. The court has had the witnesses before it and has had an opportunity to observe their bearing and demeanor while testifying, and some of the witnesses, it appears, required the admonition of the court to bring out the facts of the case more explicitly. It may be that the unsatisfactory character of such evidence weighed materially in the deliberations of the court, and the convening [P. 2] authority will not do the members of the court the injustice of treating too lightly the result of such deliberations, particularly after their reconsideration of the case. "However, the convening authority must base his action upon the evidence as it appears in the record, and is of the opinion that such evidence proves the material allegations of the specification of the first charge. "The proceedings of the general court martial in the foregoing case of Assistant Surgeon William E. Beatty, U. S. Navy, are approved. The finding on the second charge and the specification thereunder are approved. The finding on the first charge and the specification thereunder and the [C. M. O. 46-1918] acquittal are disapproved. He will be released from arrest and restored to duty." REMARKS The accused was brought to trial before a naval general court martial on two charges, to wit: (1) Violation of the 90th Article of War, and (2) violation of the 96th Article of War, the specification of each setting forth a wrongful act committed when at the time "detached for service with the Army by order of the President." They fail, however, to indicate the station or service of the accused at the date of preferring the charges or when the trial was held, and further, the averment that the accused was, at the time he committed the offense alleged "serving with a body of marines" is omitted; all of which are most important and desirable in order that the jurisdiction of the naval court might be clearly established. The statement contained in the specification to wit, "then detached for service with the Army by order of the President"-is not deemed complete, in that the law makes no direct provision for officers of the Medical Corps of the Navy being detached for service with the Army, but it does provide for occasions and conditions under which such officers become subject to the rules and Articles of War prescribed for the government of the Army, and that is, when "serving with a body of marines detached for service with the Army," and therefore in order to complete a showing of jurisdiction in such a case, it is preferable to aver that the accused was "at that time serving with a body of marines detached for service with the Army by order of the President." [P. 3] By going outside the record it was found that the offenses with which the accused was charged were committed on March 28, 1918, when he was under the jurisdiction of the Army, and amenable to the Articles of War, while the charges were preferred against him and he was brought to trial after having been returned to the jurisdiction of the Navy, and the naval court therefore had cognizance of the offenses and jurisdiction of the person of the accused under the Articles of War, which mention among others subject to military law the following: "Officers and soldiers of the Marine Corps when detached for service with the armies of the United States by order of the President: Provided, That an officer or soldier of the Marine Corps when so detached may be tried by military court martial for an offense committed against the laws for the government of the naval service prior to his detachment, and for an offense committed against these articles he may be tried by a naval court martial after such detachment ceases" (art. 2 (c)). And under the act of August 29, 1916, which provides that— "Officers and enlisted men of the Medical Department of the Navy, serving with a body of marines detached for service with the Army in accordance with the provisions of section sixteen hundred and twenty-one of the Revised Statutes, shall, while so serving, be subject to the rules and Articles of War prescribed for the government of the Army in the same manner as the officers and men of the Marine Corps while so serving" (39 Stat. 573). It should not be necessary to go outside the record to discover such important features, but the record itself should be made to cover them. These irregularities, however, are not deemed fatal, particularly as no objection was made by the accused. From a careful review of this case and consideration thereof, it is not understood why the other party to the altercation engaged in by this accused was not called as a witness. He had previously been tried and pleaded guilty to his part of the same altercation in which the accused was involved, and all the evidence in this case goes to show the latter to have been the aggressor: and whereas the evidence adduced seems clearly sufficient to sustain a finding of guilty, it would appear that the most satisfactory evidence had not been produced. The decision reached by the convening authority in this case, that the finding of the court on the specification of the first charge and said charge is not in accord with the evidence, is concurred in. [P. 4] The failure of [C. M. O. 49-1918] the court to reach a proper finding in this case presents an instance of having an aggressor in an altercation preliminary to a possible personal encounter exempted from the consequences thereof and the passive party being punished. C. M. O. 49-1918 [P. 1] Commander Frederic N. Freeman, U. S. Navy, was tried by general court martial on April 24, 1918, at the Navy Yard, Philadelphia, Pa., by order of the Secretary of the Navy, on the following charges: Charge I.-Absence from station and duty without leave (one specification). Charge II.-Drunkenness (four specifications). Charge III.-Violation of a lawful general order issued by the Secretary of the Navy (three specifications). FINDINGS The court found the specification of the first charge "proved," and the accused "guilty" of the first charge; the first specification of the second charge "not proved," the second, third, and fourth specifications of the second charge "proved," and the accused "guilty" of the second charge; the specifications of the third charge "not proved," the accused "not guilty" of the third charge, and acquitted the accused of the third charge. SENTENCE "The court therefore sentences him, Commander Frederic N. Freeman, U. S. Navy, to be dismissed from the United States naval service." RECOMMENDATION TO CLEMENCY The following unanimous recommendation to clemency was spread upon the record: "In consideration of his known professional ability and the circumstances under which his offenses were committed, we recommend Commander Frederic N. Freeman, U. S. Navy, to the clemency of the reviewing authority.” ACTION OF THE JUDGE ADVOCATE GENERAL On May 10, 1918, the Judge Advocate General recommended that the findings upon the third charge and specifications thereunder [P. 2] and acquittal of said charge be disapproved; that, subject to remarks thereon, the proceeding and findings upon the first and second charges and specifications thereunder and the sentence in the foregoing case be approved. The Judge Advocate General was of the opinion that the findings of the court on the third charge and the specifications thereunder were not in accord with the evidence adduced, which appeared to establish the allegations beyond a reasonable doubt. The order referred to in the third charge was General Order No. 306, of 1917, In regard to uniform. The accused based his defense on ignorance of said order. Each officer and enlisted man is presumed to have knowledge of the contents of Navy Regulations and General Orders, and, although ignorance of same may be considered as an extenuating circumstance, it does not excuse one guilty of infraction thereof nor relieve him from the consequences of his acts. As to the first and second charges and the specifications thereunder, with the possible exception of the first specification of the second charge, the evidence clearly shows the commission of the offenses alleged. The defense was based on irresponsibility of the accused due to his confused or exhausted mental condition. The evidence, however, shows no such mental condition as would warrant the excusing of the accused from the consequences of his acts. There was no evidence to show insanity; in fact, such appears to have been carefully avoided; but the trend of the testimony was to establish a mental irresponsibility which is not recognized as a legal defense. The evidence did not show that the accused was insane, but, on the contrary, that his condition was such as to enable him to determine right from wrong and thus to render him responsible for the probable consequences of his acts. |