Regulations for the government of the United States Navy (1865)

[<< - previous section] | [TOC] | [next section - >>]

Section 2.

General Courts-Martial.

1218 When a general court-martial shall be assembled in conformity to order, the person to be brought before it for trial shall be introduced. The precept for convening the court and the appointment or warrant of the Judge Advocate shall then be read by the Judge Advocate in the presence of the accused. The accused shall then be asked by the Judge Advocate if he objects to any member of the court, or to the court proceeding to his trial, and if he answers in the negative, the oaths prescribed by law will then be administered in the presence of the accused ; if, however, the accused shall make any objection, such objection shall be considered, decided upon, and recorded before the court is sworn.

1219 The court having been duly sworn, and that fact noted on the minutes, the charges and specifications against the accused shall be read by the Judge Advocate, and the accused shall then be asked by him if he pleads guilty or not guilty to the charges. If he pleads guilty, the court shall warn him of the consequences, and he may then withdraw his plea ; but if he repeats his plea of guilty, it shall be recorded, and the court may proceed to investigate, or at once to deliberate and determine upon the sentence. If he pleads not guilty, or stands mute, the court shall proceed to examine the testimony in the case. The record of the court must state distinctly that these questions were put, and the answers, if any, which may be given.

1220 If it shall be necessary to swear the president of a court-martial or of a court of inquiry as a witness, the prescribed oath shall be administered by the member next in rank.

1221 The president of a general court-martial, or of a court of inquiry, or the senior member of a summary court-martial, shall be empowered to preserve order, to decide upon matters relating to the routine of business, and to adjourn the court, from day to day, at and to such hours as, in his judgment, will be most convenient and proper for the transaction of the business before it ; but should an adjournment be announced by the president, to which a member has some reason for objecting, he may ask leave to present such objection, which, thereupon, must be submitted for decision to the court.

1222 It shall be the duty of the Judge Advocate to lay before the court, as far as practicable, a list of the witnesses which it may be intended to produce, with a general statement of the facts expected to be proved by each. He shall then, under the direction and control of the court, proceed to examine the witnesses who have been summoned on the part of the United States to support the charge or charges.

1223 The examination of a witness having been closed on the part of the United States, he may be cross-examined by the accused ; and when the cross-examination shall be closed, the court will then ask or allow any further questions which it may deem necessary. When the examination of a witness shall be closed, the whole of his testimony shall be read over to him, that he may then correct errors, if any have been made.

1224 "When the witnesses on the part of the United States shall have been examined, the witnesses on the part of the accused shall then be examined by the accused, or in his behalf, and afterwards cross-examined and examined by the court in the same manner as those who had been called on the part of the United States. Further examination of witnesses may then be continued, if the court, or the accused, with the assent of the court, shall desire it.

1225 Questions to be propounded to a witness shall be reduced to writing ; and should any objection be made to any proposed question, or to the reception of any testimony, the court shall proceed at once to determine upon the same ; and if they shall decide that such question shall not be put, or against the reception of such testimony, the question or matter rejected, shall be described, or recorded in full, in the minutes of the proceedings, as the court may decide.

1226 If a member of a court-martial shall, from any legal cause, fail to attend after the commencement of a case, and witnesses shall be examined during his absence, the court must, when he is ready to resume his seat, cause every person who may have been examined in his absence to be called into court, and the recorded testimony of each witness must be read over to him, and such witness must acknowledge the same to be correct, and be subject to such further examination as the said member may require ; and without a compliance with this rule, and an entry of it upon the record, a member who shall have been absent during the examination of a witness shall not be allowed to sit again in that particular case.

1227 The examination of the witnesses being closed, the accused shall be at liberty to make his defence, in writing, against the charges and specifications, which defence he shall submit to the court for their inspection before it is publicly read ; and if, in the opinion of the court, it shall contain anything disrespectful, they may prevent that part from being read ; but it shall be filed with the proceedings, if the accused desire it, and he will be held responsible for the same.

1228 After the defence shall have been read, the court shall be cleared, and the members shall proceed to consider the testimony (the whole of which shall be read over aloud by the Judge Advocate) and the defence of the accused. When they shall have sufficiently examined and considered the same, the question shall be put upon each specification of each charge by the Judge Advocate, beginning with the first, whether it is "proved" or "not proved," or "proved in part," the junior member voting first, and the rest in the inverse order of their rank, each member writing "proved," "not proved," or "proved in part," and if in part, what part, over his signature ; and each shall hand his vote to the Judge Advocate, who shall, when he has received all, read them aloud ; and the court shall deliberate and consider until a majority shall agree on a finding, which shall then be recorded.

1229 When the members shall have thus voted upon all the specifications of any charge, the question shall then be put upon the charge, to each member, "Is the accused guilty of this charge?" " guilty in a less degree than charged ? " or " not guilty ? " And then the members, in the order as above stated, shall write " guilty," "not guilty," or "guilty in a less degree than charged," and in what degree, over their signatures, and hand them to the Judge Advocate, who shall, after receiving all the votes, read them aloud, and record the general result. When the decision on one charge shall be completed, the court will then proceed to the next charge and specifications, until votes shall have been taken and recorded, as above directed, upon all the charges and specifications.

1230 When the court shall have voted upon all the charges, if the accused shall have been found guilty, or guilty in a less degree than charged, upon any one of them, by the number of members which the law may require in the particular case, they shall next proceed to vote upon the punishment to be inflicted. In this case each member shall, in the order before directed, write down and subscribe the measure of punishment which he may think the accused ought to receive and hand it to the Judge Advocate, who shall, after receiving all the votes, read them aloud.

1231 If the requisite majority shall not have agreed on the nature and degree of the punishment to be inflicted, the Judge Advocate shall proceed in the following manner to ascertain which of the different votes will obtain the assent of the requisite number of the members : He shall begin with the mildest punishment which shall have been proposed, and, after reading it aloud, shall ask the members, in the order herein before prescribed, " Shall this be the sentence of the court?" and every member shall vote, and the Judge Advocate shall note the votes. In case the proper number shall not vote in favor of the punishment proposed on the first vote, he shall then take the next lowest proposed punishment, and proceed to take a vote as before directed, and shall thus proceed until a proper majority shall be obtained for some sentence, either proposed at first or subsequently.

1232 Sentences to suspension must state distinctly whether from rank or from duty only ; and if the pay is to be suspended, whether wholly or in part, and for what length of time.

1233 The law has never intended to vest in courts-martial the power to pardon offences, or to award a nominal punishment equivalent to a pardon. The power to pardon, remit, or mitigate, is expressly vested in the President of the United States, or the officer authorized to convene the court. The exercise of this power by a naval general court-martial will subject the individual members thereof to the charge of violating the law.

1234 The sentence having been recorded, the proceedings in each separate trial shall be signed under the sentence by all the members who may have been present when the judgment was pronounced, and also by the Judge Advocate.

1235 Any member may, after the sentence has been pronounced, move for a recommendation of the accused to the clemency of the revising power, which recommendation, with the reason therefor, is to be recorded immediately after the signatures of the court and Judge Advocate to the sentence, and must be signed by the members concurring in it.

1236 When a general court-martial, court of inquiry, or summary court-martial has tried all the cases actually referred to it, and submitted, severally, the proceedings of each to the officer ordering the court, the president or senior officer thereof may adjourn it ; but he and all the members of the court must still remain at the place they are, in readiness to reassemble, if the action of the officer ordering the court should require such a course to be pursued, and until he orders the court to be dissolved.

1237 The court may allow counsel to the accused for the purpose of aiding in his defence, but always under the restriction that all motions or communications shall be made in writing, and in the name of the accused.

1238 If from any cause, after a court shall have been sworn, the number of members required by law to form a court shall not assemble on the day to which the court was adjourned, and the court, by that fact, should be dissolved, the proceedings up to the period of dissolution, and the fact of the dissolution itself, must, nevertheless, be authenticated by the signatures of the members present, and by that of the Judge Advocate, and transmitted by the senior member on hand to the officer who ordered the court, that such further measures may be directed as circumstances shall require.

1239 The sentences of all courts-martial which shall be approved on a foreign station will be communicated in a general order to the Commander of each vessel in the squadron, that they may be made public; and when approved in the United States, they shall, in the same manner and for the same purpose, be communicated to the Commander of each vessel or station in the United States.

1240 Should the proceedings of a court-martial be disapproved for any informality or irregularity of tho court, the particular irregularity or informality will be made known in general orders, so as to prevent, if possible, a recurrence of similar irregularities.

1241 No person in the Navy shall be liable to be tried and punished by a court-martial for any offence which shall appear to have been committed more than three years before the issuing of the order for such trial, unless the person by reason of having absented himself, or some other manifest impediment, shall not have been amenable to justice within that time.

1242 The president of a general court martial may order an officer of the Navy, not above the grade of Lieutenant, or an officer of the marine corps, not above the grade of Captain, to act as its provost marshal, whose duty it shall be to hold in charge the person on trial; to be accountable to the court for the due appearance of such person whenever the court is assembled ; to serve notices to witnesses, and to act otherwise as tlie police officer of the court.

1243 In the case of a trial of a petty officer, or person of inferior rating of the Navy, or of a non-commissioned officer, musician, or private of marines, the person to act as provost marshal may, if the president of the court thinks proper, be either a petty officer of the Navy, or a non- commissioned officer of marines.

1244 At the request of the president of a court of inquiry, or of the senior officer of a summary court-martial, the Commander of a vessel or station on board or at which it is held is to direct an orderly to be detailed to attend its meetings and execute orders.

1245 The defence made before a court-martial or a court of inquiry being a part of the official record, and the trial not being complete until the proceedings have been passed upon by the revising authority, it is strictly forbidden to any person who shall be tried by either court to publish, or cause or permit to be published, his defence, in whole or in part, until final action has been had in the case, on pain of such punishment as a court-martial may impose for disobedience of orders.

1246 In detailing officers for a court-martial or court of inquiry before which a medical, pay, marine, or engineer officer is to appear, it is proper, if the exigencies and interests of the public service will permit, that the commissioned officer, or more, of the same department or corps as the person to be tried, should be placed upon it ; and in detailing officers for a summary court-martial, it is equally proper, under like circumstances, if a non-commissioned officer, musician, or private of the marine corps is to be brought before it, that one or more marine officers should be of the number.

[<< - previous section] | [TOC] | [next section - >>]