[C. M. O. 22—1916] ACTION OF CONVENING AUTHORITY The convening authority on June 15, 1916, noted that in awarding its final sentence the court changed the form but not the substance of its original sentence, and that, attention having twice been called to the inadequacy of the sentence, the court entirely failed to realize its responsibilities to the naval service, and, subject to these remarks, approved the proceedings and findings and, in order that the accused might not entirely escape punishment, the sentence in the foregoing case of Chief Boatswain Herman M. Anderson, United States Navy, and directed that he be released from arrest and restored to duty. ACTION OF THE SECRETARY OF THE NAVY The Department concurs in the remarks of the convening authority relative to the inadequacy of the sentence adjudged in this case. The record of the accused, which was before the court, shows that he has been tried and convicted by general court martial on two previous occasions for similar offenses involving drunkenness. The Department therefore feels that to permit Chief Boatswain Anderson to continue in the service as a commissioned officer is adverse to the interests of justice and discipline, and that the action of the court in this case has resulted in a miscarriage of justice. C. M. O. 22—1916 [P. 6] FORMER JEOPARDY: NOT A VALID PLEA IN BAR WHEN BASED ON PROCEEDINGS HELD UPON A FATALLY DEFECTIVE SPECIFICATION. Paul H. Jones, corporal, U. S. Marine Corps, was brought before a summary court martial upon a specification preferred by the Commandant, Marine Barracks, Naval Academy, Annapolis, Md., June 5, 1916. When called upon to plead, the accused, through counsel, objected to the specifications as "fatally defective." The court sustained the objection of the accused and notified the convening authority that the accused submitted a plea in bar of trial which the court decided was a valid one. Thereupon the convening authority withdrew the specification and directed that prosecution thereon be discontinued. Thereafter the accused was brought before the same summary court martial upon two specifications preferred by the same convening authority on June 10, 1916, and setting forth in proper form the same offenses charged in the specification in the previous case. The accused, through the same counsel, now entered a plea of former jeopardy, in support of which counsel contended that the accused had already been tried for the same offenses, stating in part: "The accused contends the former specification was a valid indictment under the law and under the provisions of the Forms of Procedure." The court properly overruled this plea of former jeopardy. That the original proceedings against Jones did not advance to the necessary stage to operate as a bar of trial—that is, to a final conviction or acquittal-can readily be seen by a reference to C. M. O. 7, 1914, pp. 5-6, and requires no further discussion here. However, aside from this fact, it may be stated as sufficiently established that proceedings upon a "fatally defective" specification do not constitute former jeopardy. In United States v. Rogoff, 163 Fed. Rep. 311, it was said by the court: "It is difficult to see how the dismissal of an indictment before the case goes to the jury, when this dismissal is had upon the ground that no charge sufficient in law has ever been made against the defendant, can be said to have placed him in jeopardy. The entire transaction, from the finding of the indictment to the dismissal, is made a nullity, and the defendant comes before the court upon the second indictment as if the first charge had never been made. * "The court, having jurisdiction of the defendant, nevertheless had no jurisdiction over the offense which was attempted to be charged, inasmuch as no offense was charged and the defendant was, therefore, never in a position of jeopardy before a jury which was called to pass upon any suffi [C. M. O. 22-1916] cient criminal charge. The matter was disposed of as a question of law, with the same effect as if it had been argued upon demurrer to the indictment." [P. 7] Having in mind the foregoing, it seems sufficiently clear that, inasmuch as the court accepted the first contention of the accused to the effect that the original specification was fatally defective, the accused was not placed in jeopardy upon that specification. However, the point which is particularly worthy of notice in this connection is the fact, as shown above, that we here have the same accused, before the same court, and represented by the same counsel, first contending that the original specification against him was "fatally defective," and then, when he had secured a favorable ruling upon this point, wholly changing front and contending that the aforesaid specification was a "valid indictment." The evils that would result, were accused persons permitted to assume inconsistent positions in court as their interests might happen to change in the course of criminal proceedings, are so obvious as to require little comment. The opportunity thus presented for the guilty to escape punishment would result in placing a premium upon the ability of ingenious attorneys to confuse and mislead the court in order to obtain decisions in their favor, only to insist upon the incorrectness of such decisions when, after conviction, it should become to the interests of their clients to do so. In People v. Meakin, 61 Hun. (N. Y.) 327, the court held: "But the principle is well settled that, in criminal as well as in civil cases, a defendant must be held to the position which he assumes and upon which he requests and secures a favorable judgment or other personal advantage." In the case cited, the court, upon a former trial, had directed an acquittal upon the ground of a variance between the proof and the facts charged in the indictment. A second indictment was found for the same offense, upon the trial of which the defendants urged that in fact there was no material variance between the proof upon the former trial and the allegations of the first Indictment; that, therefore, the defendants had been once put in jeopardy, and consequently the second indictment was within the constitutional prohibition. The court, however, declined to consider the question thus attempted to be raised, holding that "whether the variance referred to was or was not material, we think the defendants cannot now be permitted to question the position which they took upon that head on the former trial. The record of that trial distinctly shows that the defendants there claimed that the variance was material; having requested the court to rule in their favor in these particulars, and the court having thereupon directed an acquittal upon these very grounds, they cannot now be heard to say that there was no material variance. In other words, they must, under such circumstances, take the acquittal as it was directed and recorded, and they cannot now be permitted to go behind the record as it was thus made up." [P. 8] The principle has been stated in accordance with this case by Bishop in his work on Criminal Law (7th ed., sec. 1000) and has been applied in numerous reported decisions. However, without further citation of authorities, it is considered sufficiently clear that the original specification preferred against Corporal Jones must now be taken as "fatally defective" in accordance with counsel's contention which was sustained by the court. This being so, there is an end to the matter, the plea of former jeopardy based upon proceedings which, at the instance of the accused, were declared a nullity, having no support in law wholly aside from the fact that said proceedings did not advance to the stage required under the citations given above to operate as a bar of trial (File 26287-3475). WITNESS: INCOMPETENCY OF COMMON-LAW WIFE TO TESTIFY FOR OR AGAINST HUSBAND. In the case of Harry C. Farmer, coal passer, U. S. Navy, tried by general court martial at the Navy Yard, Philadelphia, Pa., there was called by the prosecution a witness whose competency the defense challenged on the ground that [C. M. O. 23-1922] she was the common-law wife of the accused. The defense introduced testimony to show the relation existing between the accused and the witness, and that such relation created a common-law marriage relation between them. Counsel for the defense also presented a brief to the court, setting forth the laws of Pennsylvania governing such status, which laws supported counsel's contention. The court properly sustained the objection of the defense and declared the witness incompetent on the ground that she was the common-law wife of the accused (G. C. M. Rec. No. 32186). C. M. O. 23-1916 [P. 1] Commander Henry B. Price, United States Navy, was tried by general court martial on July 18, 1916, on board the U. S. S. Minnesota at Newport, R. I., by order of the Commander in Chief, United States Atlantic Fleet, upon the following charges: Charge I-Culpable negligence and inefficiency in the performance of duty (two specifications). Charge II.-Through negligence suffering a vessel of the Navy to be stranded (two specifications). FINDINGS The court found the first specification of the first charge "proved," the second specification of the first charge "not proved," and that the accused was of the first charge "guilty"; the first specification of the second charge "not proved" and the second specification of the second charged "proved in part," and that the accused was of the second charge "guilty." SENTENCE "The court, therefore, sentences him, Commander Henry B. Price, U. S. Navy, to lose five (5) numbers in his grade." RECOMMENDATION TO CLEMENCY The following recommendation to clemency signed by six of the seven members of the court was spread upon the record: "In view of the previous excellent record of the accused and of his well known careful and painstaking qualities, and to the fact that the stranding was due as much to an error of judgment as to negligence and inefficiency, we recommend Commander Henry B. Price, U. S. Navy, to the clemency of the revising power." [P. 2] The convening authority (Commander in Chief, Atlantic Fleet) on July 25, 1916, approved the proceedings, the finding on the first charge and first specification thereunder, the finding on the second charge and second specification thereunder, and the sentence in the foregoing case of Commander Henry B. Price, U. S. Navy. The findings on the second specification of the first charge and on the first specification of the second charge were disapproved as, in the opinion of the convening authority, these findings were not in accordance with the evidence. The convening authority, in taking the above action, made the following comments: (1) "The following irregularities were noted in the record. The entire findings were not entered in the handwriting of the judge advocate. Forms of Procedure, 1910, page 40, states, "The judge advocate was recalled and directed to record the following findings: Everything which follows this statement is a part of the finding and therefore must be recorded in the handwriting of the judge advocate (C. M. O. 42, 1914, p. 5 and citations therein). (2) "The receipt of the accused for a copy of the proceedings was not appended to the record as required by Forms of Procedure, 1910, p. 74. While this procedure is irregular the convening authority does not consider it sufficient to invalidate. "Six of the seven members of the court signed a recommendation for clemency (as set forth above). The accused in this case is an officer holding [C. M. O. 24-1916] a commission as commander and performing the duty of his rank. An officer assigned duty of importance in command of a vessel of the Navy must be held to a strict responsibility for the efficient performance of that duty. In this case a vessel of the Navy has been damaged to the extent of many thousands of dollars, and her services will be lost to the fleet during the time required for her repairs. In view of the very lenient sentence adjudged in this case, it is not felt that a reduction of the sentence is warranted. The recommendation for clemency is accordingly denied. Commander Henry B. Price, U. S. Navy, is hereby released from arrest and restored to duty." C. M. O. 24-1916 [P. 1] Lieutenant (junior grade) Conrad Ridgely, United States Navy, was tried by general court martial July 24, 1916, at the Naval Training Station, Newport, R. I., by order of the Secretary of the Navy, on the following charges: Charge I.-Culpable inefficiency in the performance of duty (one specification alleging that the accused, as navigator of the San Francisco, in plotting his course by dead reckoning from 9 p. m. to 12 p. m. an May 16, 1916, failed to make use of the information furnished by official publications in regard to the currents, in consequence of which the San Francisco was stranded upon a shoal at about 12:41 a. m. May 17, 1916, in about Latitude 41°21′30′′ N. Longitude 69°48'40" W.) Charge II.-Culpable negligence and inefficiency in the performance of duty (four specifications alleging a failure to utilize in navigating the San Francisco certain well known and generally accepted methods of fixing the position of a ship, and that he failed to notify and warn the captain when, in his opinion, the ship was standing in danger, as the result of which the San Francisco ran upon a shoal at the time and place set forth under charge I). FINDINGS The specification of the first charge, "not proved." And that the accused, Lieutenant (junior grade) Conrad Ridgely, U. S. Navy, is of the first charge "not guilty" and the court does therefore acquit the said Lieutenant (junior grade) Conrad Ridgely, U. S. Navy, of the first charge. The first specification of the second charge, "not proved." And that the accused, Lieutenant (junior grade) Conrad Ridgely, U. S. Navy, is of the second charge "not guilty" and the court does therefore acquit the said Lieutenant (junior grade) Conrad Ridgely, U. S. Navy, of the second charge. [P.2] ACTION OF THE SECRETARY OF THE NAVY In reviewing this case several questions arise, and it is uncertain upon what ground the court arrived at an acquittal. These questions may be considered as follows: (1) The responsibility of the navigator under the circumstances. (2) Whether or not he was negligent and inefficient in the actual navigation of the ship. This in turn divides itself into (a) Navigation of the ship before 12:07 a. m., and (b) that subsequent to 12:07 a. in. (3) Whether or not, as a consequence of such neglect and failure, the San Francisco stranded. Responsibility of the navigator.-The Navy Regulations, R-2401, state that "the navigating officer is the officer detailed by the Department to perform the navigation duties and is the head of the navigation department of the ship." It also states that "the navigating officer shall be senior to all watch and division officers." It was shown by the evidence that Lieutenant Ridgely was not detailed by the Department but was detailed at his own request, by the captain of the ship as navigator, and that he was not the officer upon whom by rank the navigation duties would have automatically devolved. Certain evidence was also introduced showing that upon graduation he stood low in his class and low [C. M. O. 24-1916] in the subject of navigation, and that he had not received instruction in navigation since his graduation. The question of his standing in the subject of navigation and the absence of instruction since he became a commissioned officer is believed to be irrelevant. An officer bearing a commission must be accepted as a responsible person and must be held accountable for the proper and efficient performance of duties commensurate with his grade as recognized by Navy Regulations. The only question remaining under this heading is whether or not the court considered that he was legally assigned to the duties of navigator in the sense of being responsible for the efficient performance of those duties. The duties of navigator of a vessel such as the San Francisco are commensurate with the grade of junior lieutenant, and despite the provision of the Navy Regulations above quoted, Lieutenant Ridgely was responsible for the proper performance of these duties after they were assigned him by the commanding officer; it is not believed that the court acquitted him on this ground. Methods of navigation of the ship-(a) Before 12:07.-Without reviewing in detail all of the evidence concerning the navigation of the ship, the evidence shows that the San Francisco was navigated from the last fix to 12:07 without the use of the very important current charts supplied for the waters in question and as a consequence arrived at the entrance to Great [P. 3] Round Shoal Channel at approximately 11:54, instead of 12:07. The evidence shows that working forward from the last fix and applying the current, the track of the San Francisco was almost identical with the track obtained by working back from the position of grounding; and working forward it was shown that she would have arrived off the entrance to the channel at 11:53, while working back from the position of grounding showed that she must have arrived off the entrance at 11:54; in other words, the evidence shows that had the current chart which was supplied to the ship for that purpose been utilized in the run subsequent to the last fix, her position would at all times have been accurately known, and at 11:53 or 11:54, either the entrance bouys would have been sighted or else a course to the eastward would have been laid at that time. (b) After 12:07.-The evidence shows that at 12:14, on sighting a light to the southward and westward, toward which, under orders of the division commander, the ship was steered, with the exception of the soundings by the hand lead, ordinary methods of navigating and safeguarding the ship were neglected, and though the navigator realized the uncertainty of his position, he failed to advise and warn the captain as to his opinion concerning the danger of the course then being pursued, as is required by Navy Regulations. Article 2404 (3) requires that "If the commanding officer is conning and the navigator thinks the ship is running into danger, he shall so inform the commanding office and advise him as to a safe course to be steered." It is believed that the full purport and value of this regulation is frequently overlooked. This warning which is required by regulations is as important a portion of the duties of navigator as are the ordinary methods of piloting; this regulation is not intended to be permissive, it is mandatory. The keeping afloat of a vessel of war is a duty so important that the Government, in order to safeguard itself and insure a check against those unaccountable lapses which sometimes occur in any individual, however proficient he may be, has prescribed a concurrent responsibility in regard to the navigation thereof. The Department considers that in cases of danger, or in cases where the navigator feels uncertain of his position, the requirement above quoted of article 2404 is an additional safeguard intended to bring forcibly to the attention of the captain the fact that the position of the ship is not known to the navigator. Though the evidence shows that both the division commander and the commanding officer were cognizant of the conditions subsequent to 12:07, this knowledge is not construed as relieving the navigator of responsibility for affirmatively informing the captain of his opinion concerning the course then being steered; and aside from all other navigational features subsequent to 12: 07, the Department considers that the failure of [P. 4] the navigator to make this protest was in itself negligence and inefficiency in the performance of his duties. Effect of navigational methods upon stranding of the ship.-If it is considered that Lieutenant Ridgely was inefficient in the navigation of the ship; that the methods used by him were not such that the Government has a right to demand of officers charged with this duty, then it may be stated, as a matter of law, |