Melville Fuller

“ Rep. 987, we held that the supreme court of the District of Columbia had jurisdiction and authority to determine the validity of an act which authorized the waiver of a jury, and to dispose of the question as to whether the record of a conviction before a judge without a jury, where the prisoner waived trial by jury according to statute, was legitimate proof of a first offense ”

“ But we must not be understood by anything we have said as intending in the slightest degree to impair the salutary rule that the sentences of courts-martial, when affirmed by the military tribunal of last resort, cannot be revised by the civil courts save only when void because of an absolute want of power, and not merely voidable because of the defective exercise of power possessed. ”

“ The fact that the vouchers purported to be issued as against the appropriations for the improvement of the Savannah river and of Cumberland sound, if these vouchers were false and falsely certified to, and if the accounts on which the moneys were paid were false, 'the moneys not being due or owing from the United States to the parties paid, or to any one else, and he, the said Captain Carter, well knowing this to be the case,' as stated in the specification,-could not make the application of the money by that payment an application to a purpose prescribed by law. ”

“ Any officer who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service.' [Rev. Stat. § 1342.]
It is said that the punishment must be imposed under either the 60th or the 61st articles; or under both; that the only penalty under the 61st article is dismissal; that the punishment under the 60th article may be 'fine or imprisonment, or by such other punishment as a court-martial may adjudge;' and that this is in the alternative, and cannot be cumulative. ”

“ The circuit court of appeals, without questioning the correctness of that conclusion, did not consider the question, because it sustained the sentence under the conviction of the first and second charges. The circuit court for the district of Kansas concurred in the conclusions of each of the other courts. We are of opinion that officers of the army are, in the eye of the law, on military duty although employed as such officers under statutes of the United States in the public service on duties not in themselves pertaining to the army ”

“ Not only do military usage and procedure permit of an indefinite number of offenses being charged and adjudicated together in one and the same proceeding, but the rule is recognized that whenever an officer has been apparently guilty of several or many offenses, whether of a similar character or distinct in their nature, charges and specifications covering them all should, if practicable, be preferred together, and together brought to trial. ”

“ That that is the necessary construction is not to be conceded. Offenses under this article may be of greater or less gravity, and the necessity for the exercise of discretion is obvious. Conviction in some cases might deserve the punishment of fine, or of imprisonment, or of both, as well as of dismissal in addition to either or both; in others lesser penalties might suffice. ”

“ When properly constituted and convened, a court-martial has jurisdiction to hear and determine the question whether the accused is guilty of any of the offenses created by the articles of war. This jurisdiction necessarily includes the authority to decide, when the charge preferred against the accused is the commission of one or more of these offenses, whether the specifications and the evidence sufficiently exhibit the incriminating facts. As was said by the Supreme Court in Dynes v. ”

“ Respondent objected in conclusion to the admission by the court of the abstract of the evidence alleged to have been taken before the court-martial and made part of petitioner's petition, because the record of the whole proceedings of a court-martial is required by law to be reduced to writing, and deposited in the office of the Judge Advocate of the Army, and this record or a copy thereof duly authenticated is the best evidence ”

“ That the punishment of imprisonment was beyond the powers of the court-martial and void in this: That under and by virtue of an act of Congress approved September 27, 1890, the President, by an order dated March 20, 1895, fixed the maximum punishment for a violation, by an enlisted man in the Army of the United States, of the 60th article of war, and for the violation by such person of the 62d article of war, by embezzlement of more than $100, at a term of four years' confinement at hard labor, under each article ”

“ That it appeared from the charges and specifications, and also from the evidence, that the payment of the two checks drawn by Carter, and described in each of the specifications under which he was convicted, were the only basis of each of the four charges, and that the single act of drawing the two checks had been carved up into four distinct and different crimes, and a punishment assessed on each ”

“ According to military usage and practice, the charge is in effect divided into two parts, the first technically called the 'charge,' and the second the 'specification.' The charge proper designates the military offense of which the accused is alleged to be guilty. ”

“ By amendment a further allegation was added to the petition to the effect that on December 9, 1899, said Carter and Benjamin D. Green and others were indicted in the United States circuit court for the southern district of Georgia for a conspiracy to defraud the United States, a copy of which indictment was attached ”

“ Confinement at hard labor in a penitentiary is prescribed by §§ 5438 and 5488 of the Revised Statutes, § 5438 having been brought forward from the act of March 2, 1863, from which the 60th article was taken. ”

“ The claim represented by the following voucher submitted by the said Captain Carter with his accounts, and marked 'Appropriation for improving harbor at Savannah, Georgia:' Voucher No. 8, $230,749.90, July, 1897; and the claim represented by the following voucher submitted by the said Captain Carter with his accounts, and marked 'Appropriation for improving Cumberland sound, Georgia and Florida:' Voucher No. ”