situation similar to that which existed in the present case. 1893 (27 Stat., 716), provides that:

[C. M. O. 17—1916]

The act of March 3,

"Fraudulent enlistment, and the receipt of any pay or allowance thereunder, is hereby declared an offense against naval discipline and made punishable by general court martial under article 22 of the Articles for the Government of the Navy."

Up to the time of the passage of this act there were in existence no legal means of trying by court martial for this offense one who was not at the time fraudulently enlisting subject to naval jurisdiction. Since the passage of the above act the legal means exist for trying such an offender but in order to make use of the same it is necessary that they be properly pleaded.

Now, having in mind the conditions which were to be remedied by the act of March 3, 1893, and considering the language of this statute, it may be seen that the gist of the offense of fraudulent enlistment, when committed by persons not in the service at the time of procuring such enlistment, is not the false representations made prior to their acceptance, but is the receipt of pay and allowances under a fraudulent enlistment, which act is committed after the offender has completed a contract-binding as to him even though voidable by the Government-whereby he has submitted himself to naval jurisdiction. In order, then, to have preferred a valid specification against McKay, it would only have been necessary to have [P. 8] added to the specification the further and material allegation that he had received pay and allowances under his fraudulent enlistment.

The foregoing, of course, applies only to the case of persons who are not in the naval service at the time of fraudulently enlisting. In the cases of men who are actually in desertion as explained above, the allegation of receipt of pay and allowances is not essential to the validity of a specification in support of a charge of fraudulent enlistment. In the latter cases the offenders are subject to naval jurisdiction at the time of making the false representations whereby the fraudulent enlistments are obtained and the statutory provision need not be utilized in order to complete the offense. In fact, the insertion of the allegation of the receipt of pay and allowances in these cases merely makes necessary an attempt to prove more than would otherwise be required to sustain the charge. However, inasmuch as in such cases, even in the event of failure to prove the receipt of pay and allowances, the charge would be sustained by the proof of having procured enlistment by fraudulent representations, while, in the cases of persons enlisting fraudulently while not subject to naval jurisdiction, the allegation of the receipt of pay and allowances is vital to the specification, it is a good rule, in all cases of fraudulent enlistment about which there may be any doubt, to set forth this allegation in the specification. (See C. M. O. 23, 1910, 7-13.)

1. SPECIFIC INTENT: WHEN AN ESSENTIAL INGREDIENT OF AN OFFENSE, MUST BE ALLEGED AND PROVED.

2 WITNESSES: SHOULD TESTIFY ONLY AS TO FACTS.

(1) Franklin Dempsey, coal passer, U. S. Navy, was tried by summary court martial on board the U. S. S. Memphis upon a specification alleging that, when testifying before a board of investigation, he made a statement which "was knowingly false and intended to deceive."

The evidence adduced at the trial showed clearly that the statement in question was false, but there was no evidence introduced indicating that the statement was knowingly false and intended to deceive. An analysis of the offense charged shows that there are two elements essential to its completion, namely (1) falsity of the testimony in question and (2) knowledge of such falsity together with an intention to deceive. Inasmuch as only (1) of the above elements constituting this offense was established by evidence, proof was, therefore, lacking of the completion of the offense and the court properly acquitted the accused thereof.

(2) During the course of the trial of this case one witness was asked:

“10. Q. Do you think that the statement made by the accused at the investigation of which you were recorder, was false and intended to deceive? [P. 9] "11. Q. Do you think that he was knowingly mistaken?"

[C. M. O. 17-1916]

Another witness was asked:

"8. Q. Was it knowingly false or intended to deceive?”

The above questions called for expressions of opinions from witnesses and not for statements of facts. It is well settled, as a general rule of evidence, to which the circumstances in this case offer no ground for exception, that the testimony of witnesses should be confined to the facts in a case and that it is the exclusive function of the court to draw the inferences which may be predicated upon the facts established by the testimony. The above questions, therefore, should have been excluded by the court as improper. (See Index-Digest, 1914, 20; C. M. O.

49, 1915, 15.)

SPECIFICATIONS: THE SAME OFFENSE SHOULD BE MADE THE SUBJECT OF BUT ONE SPECIFICATION.

August Saari, private, U. S. Marine Corps, was tried by general court martial at the Marine Barracks, American Legation, Peking, China, by order of the Commander in Chief, U. S. Asiatic Fleet, upon charges among which was one of "drunkenness." Under this charge there were three specifications, the first one alleging that the accused was under the influence of intoxicating liquor at or about 5:20 p. m. February 15, 1916; the second specification alleging that he was under such influence at 5: 45 p. m. on the same date; and the third alleging that he was under such influence at about 6:00 p. m. on the same date.

Since it seems impossible that a man could become three times intoxicated and twice sober during so short a period as forty minutes, it would appear that the facts alleged in the three specifications all relate to the original state of intoxication continuing during this forty-minute period, and that there had been but one act of becoming intoxicated and but one resulting state of intoxication. The mere fact that the location of the accused may have changed while intoxicated does not in itself constitute a distinct offense. Also, when one has become intoxicated, his continuance in this state until sufficient time has elapsed to permit of his becoming sobered is to be presumed, and such a continuance forms a necessary part of each single offense of "drunkenness" and should not be separately alleged. To hold otherwise would be, in effect, to allow a different specification for every second a man's intoxication might continue (G. C. M. Rec. No. 32124).

[P. 10]

DEPOSITS: ENLISTED MAN, HAVING BEEN GIVEN AN ACTING APPOINTMENT AS WARRANT OFFICER, IS ENTITLED TO MAKE DEPOSITS AND DRAW INTEREST THERE ON UNTIL THE DATE THAT HE IS GIVEN A WARRANT.

Held, in the case of an enlisted man, having been given an acting appointment as warrant officer, the status of such man pending the issuance of a warrant continues that of an enlisted man, although at the same time acting at a warrant officer, and he is therefore entitled to draw interest on deposits or to make additional deposits in accordance with the act of February 9, 1889 (25 Stat. 657) providing that deposits may be made by "any enlisted man or appointed petty officer of the Navy." The deposit, therefore, of an enlisted man, having been given an acting appointment as a warrant officer, should be settled on the date that he is given a warrant, and interest allowed to that date, unless previously discharged (File 26254-2020, Sec. Navy, June 6, 1916).

"LINE OF DUTY" AND "MISCONDUCT": CONSTRUED.

Drowning. Deceased fell overboard from a shore boat while returning to his ship from authorized liberty. Deceased was sober at the time and his death was found due to accidental drowning. Held, not line of duty and not misconduct (File 26250-789, Sec. Navy, May 5, 1916).

Drowning.-Deceased, an acting ship's cook, went to ship's side to dump egg shells, fell overboard, and was drowned. Evidence showed that life line had been left down. Held, line of duty and not misconduct (File 26250-796, Sec. Navy, May 26, 1916).

Struck by train.—Deceased was struck by train while a trespasser on railroad tracks in violation of definite law and signboards. Held, not in line of duty and misconduct (File 26250-788, June 6, 1916).

C. M. O. 19-1916

[P. 1] Lieutenant (junior grade) Guy C. Barnes, United States Navy, was tried by general court martial on June 10, 1916, at the Navy Yard, Norfolk, Virginia, on the following charge:

Charge. Culpable negligence and inefficiency in the performance of duty (one specification alleging that the accused, while in command of the Roe and when the vessel was approaching her moorings under circumstances which were well known to him as involving a risk of a collision with the Monaghan, did "neglect and fail properly and in due time to slacken and retard the speed of the said ship Roe, as it was his duty to do, by reason of which neglect and failure the said ship Roe did then and there strike and collide with the said ship Monaghan, and thereby damage the said ship Monaghan and the said ship Roe, and he, the said Barnes, was therein and thereby culpably negligent and inefficient in the performance of his duties").

FINDINGS

"The specification of the charge, 'not proved.'

"And that the accused, Guy C. Barnes, lieutenant (junior grade), U. S. Navy, is of the charge, 'not guilty' and the court does, therefore, acquit him, the said Guy C. Barnes, lieutenant (junior grade), U. S. Navy, of the charge."

RETURNED FOR REVISION,

The Department on June 26, 1916, returned the record in this case to the court with the direction that it reconvene for the purpose of reconsidering its findings and acquittal. The Department's letter returning the record to the court read in part as follows:

"The attention of the court is invited to Navy Regulations, 1913, R-2081 (4) and (5) and of which the court must take judicial notice.

"The above regulations make the commanding officer responsible that all necessary precautions are taken and he is, furthermore, chargeable with knowledge of what those precautions are which should be taken under various circumstances; his responsibility for professional knowledge and foresight in avoiding collision applies at all times, but is particularly obligatory in a case similar to this where the Monaghan was in such [P. 2] a position as to invite collision unless unusual care and precautions were employed in making the landing.

"If the court considers that the accident was due to a failure of the engines to back properly then the fact still remains that the accused is guilty of negligence either in depending entirely on the engines to make the landing safely, or in failing to recognize that other precautions were necessary to ensure a safe landing being made.

"The responsibility was his to recognize that 'this occasion required special precautions; the responsibility was his to know the special and unusual precautions which were necessary on this occasion to insure a safe landing and responsibility was his to see that these precautions were taken. In brief, the position of Lieutenant Barnes as commanding officer imposed upon him the responsibility to land safely under unusual conditions. If he failed to recognize that unusual conditions presented themselves or to know what special precautions were required, or through lack of foresight he failed to take them, then the accused is guilty."

FINDING IN REVISION

"The court decided to revoke its former finding and acquittal in the case of Lieutenant (junior grade) Guy C. Barnes, U. S. Navy, and to substitute therefor the following:

"The specification of the charge 'Proved, except the words "and inefficiency," in the last line, which words are not proved,'

"And that the accused, Lieutenant (junior grade) Guy C. Barnes, U. S. Navy, is of the charge, 'guilty in less degree than charged, guilty of culpable negligence in the performance of duty.'"

494611-42-Vol. 1

[C. M. O. 20—1916]

SENTENCE IN REVISION

"The court, therefore, sentences him, Lieutenant (junior grade) Guy C. Barnes, U. S. Navy, to lose three (3) numbers in his grade."

RECOMMENDATION FOR CLEMENCY

The following unanimous recommendation to clemency was spread upon the record:

"In consideration of his previous excellent record, we recommend Lieutenant (junior grade) Guy C. Barnes, U. S. Navy, to the clemency of the revising power."

RECOMMENDATION OF CHIEF OF BUREAU OF NAVIGATION

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

"Returned. This Bureau considers the sentence awarded by the court inadequate to the offense found proved and recommends [P. 3] approval of the findings and sentence in order that this officer may not escape punishment entirely."

ACTION OF THE SECRETARY OF THE NAVY

The proceedings, findings, and sentence, in the foregoing case of Lieutenant (junior grade) Guy C. Barnes, U. S. Navy, are approved.

In accordance with the recommendation of the Bureau of Navigation, the recommendation to clemency is disapproved, and Lieutenant Barnes will be released from arrest and restored to duty.

C. M. O. 20-1916

[P. 1] Gunner John K. Thompson, United States Navy, was tried by general court martial on June 14, 1916, at the Navy Yard, New York, N. Y., by order of the Secretary of the Navy and found guilty of the following charges:

Charge I.-Conduct to the prejudice of good order and discipline (one specification alleging that the accused, while undergoing a written professional examination, knowingly, willfully, corruptly, fraudulently, secretly, and without the knowledge or permission of the examining board, did take into the examining room four blotters, having written and copied upon them facts in answer to questions that might be asked him).

Charge II.-Conduct unbecoming an officer and a gentleman (one specification alleging that the accused, having been given a certain question while undergoing examination did, willfully, corruptly, etc., surreptitiously aid himself in answering said question by means of certain facts he had written and copied upon a blotter, which he had introduced into the examining room without the knowledge of the examining officer).

SENTENCE

"The court therefore sentences him, John K. Thompson, a gunner in the United States 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 the accused's previous long and honorable service, we recommend Gunner John K. Thompson, United States Navy, to the clemency of the revising power."

ACTION OF THE SECRETARY OF THE NAVY

The Bureau of Navigation, after a careful consideration of the record in this case, recommends the approval of the findings and sentence. Careful considera

[C. M. O. 21—1916]

tion has been given to the past record and the recommendation to clemency spread upon the record by the members of the court. However, in view of the nature of the offense in this case, the Department is of the opinion that the retention of an officer convicted of such an [P. 2] offense is not desirable, and in accordance with the recommendation of the Bureau of Navigation, the proceedings, findings, and sentence in the foregoing case of Gunner John K. Thompson, U. S. Navy, are approved.

ACTION OF PRESIDENT

In conformity with the provisions of article 53 of the Articles for the Government of the Navy (section 1624 of the Revised Statutes), the record was submitted to the President of the United States, who, on July 8, 1916, confirmed the sentence of the court.

C. M. O. 21-1916

[P. 1] Chief Boatswain Herman M. Anderson, United States Navy, was tried by general court martial on May 29, 1916, on board the U. S. S. Brooklyn at Shanghai, China, by order of the Commander in Chief, United States Asiatic Fleet, and found guilty of the following charge, the specification of which was "proved by plea."

Charge.-Drunkenness (one specification).

SENTENCE

"The court, therefore, sentences him, Chief Boatswain Herman M. Anderson, United States Navy, to be restricted to his ship or station for a period of three (3) months and to lose one-half (1⁄2) of sea-duty for a period of one (1) year."

RETURNED FOR REVISION

The convening authority on May 31, 1916, returned the record of proceedings to the court and ordered the general court martial to reconvene for the purpose of reconsidering its sentence, as, in the opinion of the commander in chief, the sentence was inadequate to the offense found proved.

SENTENCE IN REVISION

The court in revision decided to revoke its former sentence in the case of Chief Boatswain Herman M. Anderson, United States Navy, and to substitute therefor the following:

"To be restricted to his ship or station for a period of three (3) months and to lose one hundred dollars ($100) per month of his pay for a period of twelve (12) months."

AGAIN RETURNED FOR REVISION

The convening authority, after reviewing the record in revision, on June 7, 1916, again returned the record to the court, inviting attention to the fact that the sea-duty pay of the accused [P. 2] was $2,618 per year and that the sentence adjudged by the court in revision was less than that originally adjudged and previously stated to be inadequate, and directing the court to reconvene for a reconsideration of its sentence in revision.

SENTENCE IN REVISION

The court in revision decided to revoke its former sentence in the case of Chief Boatswain Herman M. Anderson, United States Navy, and to substitute therefor the following:

"To be restricted to his ship or station for a period of three (3) months and to lose one hundred and nine dollars and nine cents ($109.09) per month of his pay for a period of twelve (12) months.”