sideration and advice before he orders trial by general court. No general court may be ordered, then, unless the charge states an offense punishable under the Code, and the charge is warranted by evidence indicated in the report. If a charge or specification is not formally correct, or is not supported by the evidence, the convening authority may make changes or corrections necessary to conform the charge or specification to the evidence.

The time element of pretrial procedure has been given due consideration under the Code. If a command holds a man for trial by general court, the charges and specifications must be forwarded to the convening authority within 8 days after arrest or confinement for trial, or the reasons for delay reported to that officer. Provision is made, too, against hasty trials after an accused is ordered to trial. Under the Code, trial counsel must serve a copy of the charges and specifications on the accused in all general and special courts martial. The accused in a general court may not be brought to trial within 5 days after he has been served, and a 3-day lapse of time is provided in special courts.

Trial procedure will undergo significant changes after 31 May 1951, all designed to insure prompt, fair and impartial hearings on clear-cut issues, with the maximum legal protection of all ranks and ratings in the military community who may be accused of offenses. All of our constitutional and traditional safeguards are clearly expressed in the Code, many in stronger terms than before.

A statute of limitations is that part of the organic law which places a time limit upon instituting legal proceedings, civil or criminal, against a person. In the Navy the Statute of Limitations has been brief and reasonably clear in the past. The Statute of Limitations set forth in the Uniform Code of Military Justice is considerably more complicated, and will require an article of its own in a later issue of the JAG JOURNAL. One significant change has been made in the matter of wartime desertions. It will be recalled that the wartime deserter had a slight edge, under our present Statute of Limitations, over the peacetime deserter, because the Statute of Limitations began for the peacetime deserter with the date on which his enlistment normally would expire and ran for 2 years thereafter, while the Statute of Limitations began for the wartime de

serter on the date of desertion. This advantage was considerably offset by the practice of issuing an order for trial in the case of deserters within the 2-year statutory period of limitation, thus rendering the deserter liable to trial at any time thereafter. Under the Code, Congress has provided that wartime desertion or absence without leave may be tried and punished at any time without limitation. This obviates the possibility that wartime deserter may escape punishment through oversight in preparation of an order for trial before the statutory limitation runs out.

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The Code bars the trial of peacetime deserters and of offenders who in peacetime perpetrate frauds against the United States or in peacetime mishandle the property or contracts of the United States, unless sworn charges and specifications are received by an officer exercising summary court martial jurisdiction over the offender within 3 years after the date of the alleged offense. Also brought within this same time period are: peacetime desertion, manslaughter, rape, larceny, robbery, forgery, maiming, sodomy, arson, extortion. assault, burglary, housebreaking and perjury.

Wartime offenses involving frauds against the United States in any manner and wartime offenses arising out of the handling of property or contracts of the United States and the financial aspects of contract negotiations or terminations, can be tried by courts martial providing sworn charges and specifications are delivered to an officer having summary court martial jurisdiction over the accused within 3 years after the termination of hostilities as proclaimed by the President or by joint resolution of Congress.

Offenses not specified are not triable by a court or punishable at mast if committed more than 2 years before sworn charges and specifications are received by the officer exercising summary court martial jurisdiction over the command or before the imposition of mast punishment.

The only pleas that an accused may enter, upon arraignment, will be, "not guilty" or "guilty." It is possible that the regulations and Manual will permit as a "regular" plea "not guilty of the offense charged, but guilty of a lesser included offense"; however, any other plea will be considered an irregular plea and, if made, a plea of "not guilty" will be entered in the record. Similarly, a plea of "not guilty" must be recorded by the court for an accused who has pleaded

"guilty" improvidently or through lack of understanding of its meaning and effect, or who fails to make, or refuses to make, any plea. Courts are prohibited by the Code from receiving a plea of "guilty" to any offense which may be punished by the death penalty.

In addition to restating current naval provisions for equal opportunity of prosecution and defense to obtain witnesses and other evidence, the new Code provides that witnesses may be compelled to appear and testify in any part of the United States, its territories and possessions. Under present law a witness may refuse to appear, with impunity, if he is served with a subpena outside the State in which the court martial is sitting. In a few important cases it has been necessary for courts, complete with counsel and parties, to adjourn to the place where a material witness resided, in order to secure his testimony.

The Code also provides a penalty of a $500 fine, or imprisonment for 6 months, or both, for the offense of refusal or willful neglect to appear and testify or refusal to qualify as a witness when a subpena has been duly issued and the person has been paid or tendered the proper fees and mileage costs. The court martial or other military tribunal does not exact the penalty, however. The offender is prosecuted by a United States attorney in a Federal district court or by the officer prosecuting for the government in a territorial or other Federal court of original criminal jurisdiction.

Military tribunals will have, for the first time, however, authority to punish any person, including civilians not subject to the Code, for contempts of court committed in the presence of the court. The maximum punishment is 30 days confinement or $100 fine, or both.

A significant change is made by the Code concerning the number of votes necessary to convict and to pass sentence. A conviction of any offense which carries a mandatory death penalty requires the concurrence of all members present; and no person may be sentenced to death unless all the members present concur. A three-fourths majority of all members present is required to vote a penalty of life imprisonment or confinement in excess of 10 years. Convictions of offenses not carrying a mandatory death penalty require a two-thirds majority, and all sentences other than death, life imprisonment or confinement in excess of 10 years require the vote of two-thirds of the

members present when the sentence is voted on. All other questions to be decided by the members of general or special courts are decided by a simple majority. A tie vote on a challenge disqualifies the challenged member; a tie operates against the accused on a motion for acquittal or for a finding of insanity, but will operate for the accused on any other question.

A copy of the record of proceedings of each general or special court martial must be given to the accused.

As in the past, punishment which a court martial may direct will be limited by the President by a schedule to be promulgated. There is little reason to believe the schedule will vary greatly from that currently in force in the Navy, but reexamination in the light of modern trends is indicated. Under the Code, sentences of confinement not suspended will begin to run from the date sentence is adjudged by the court martial. Confinement will be regulated by the service Departments, but authority is given to confine prisoners in any place of confinement under the control of any of the armed forces, or in any Federally controlled or used penal or correctional institution.

The Congress has given us, by the Uniform Code, a very complex and complete system for the review of courts martial. The subject was given such detailed attention that it is impractical to discuss it briefly, here. It just does not permit of brevity, but will call for a series of articles before the Code goes into effect. The purpose of Part IX of the Code, comprising 18 separate articles is clearly to insure to all persons subject to the Code thorough, careful review by competent lawyers all the way up the ladder. Not all cases will reach this tribunal, but in those cases that do, the accused and the Government will be represented by qualified appellate counsel.

After making detailed provisions for Courts of Inquiry and the authority to administer oaths, both in and out of court, the Code considers and provides for careful explanation of the Code to all personnel, rather than merely "reading rocks and shoals" to the crew every 6 months; procedure for redress of wrongs; redress of injuries to property; and for the delegation and subdelegation of Presidential powers.

The foregoing provisions are all included in Section 1 of the Code. Sections 2 through 17 of the Code have been separated from Section 1 in

order to exclude them automatically from the provisions of Section 1, and at the same time to preserve them as statutory law in an appropriate place in the United States Code. These latter sections, 2 through 17: constitute savings provisions for remaining articles of the Code in the event any article or part should be declared invalid; preclude inference of legislative construction being placed on abbreviated titles, known as "catch lines"; insure that offenses committed under present laws may be punished under present laws, even though prosecuted after their repeal by the new Code; provide for the effective date of the Code with the single exception that the authority of the Judge Advocate General to grant a new trial, under certain conditions, for offenses committed during World War II is made effective immediately. They restate, also, the authority of naval officers after loss of vessel or aircraft; the authority of officers of separate organizations of Marines; commanders' duties of example and correction; provide for divine service on board ves

THE

sels and at naval activities, and reverent behavior during divine service; prescribe a standard oath of enlistment; provide for the removal to district courts of civil or criminal suits against naval personnel started in State courts, when the suit is based upon any act done under color of official duty; regulate the dismissal of officers; set forth the qualifications of Judge Advocates General; and repeal existing provisions of law.

We have not attempted here to cover all of the provisions of the Code-nor, in fact, have we touched upon all of the important provisions. Many of the technical aspects of the Code have been passed over, deliberately, in order to stress the major changes hoping, thereby, to give all our readers a clear picture of what is in the wind without the distraction of technicalities.

The JAG JOURNAL in forthcoming issues will carry informative, but more technical, articles until the Code becomes effective, in order that it may then be placed in operation without confusion

or error.

HE NOVEMBER 1947 ISSUE of the JAG JOURNAL discussed the right of Navy personnel to maintain suit for salvage in the light of the traditional Navy Department policy and the Omaha-Odenwald decision. A variation of the problem was presented in a libel filed in the Southern District of New York by a Naval Reserve captain on inactive duty against the Livingston Roe and the Panama Transport Co. The services involved the saving of the SS Livingston Roe and her cargo of gasoline from destruction by fire at Recife through naval personnel facilities under the officer's command. The district court recognized that a suit might be maintained under the circumstances, which were present in the OmahaOdenwald, where neither the vessel nor the Navy was charged with any duty of rescuing the scuttled foreign blockade runner. The Livingston Roe situation, however, was held to be one where the salvage services "were within the scope of duties enjoined upon the Navy of which libelant was a high-ranking officer, and that he performed those services in that capacity and pursuant to such duties." Accordingly, the court held the libelant disqualified to receive a salvage award.

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With the complete activation of the Military Sea Transportation Service (MSTS) on 1 March 1950, the former Army transport vessels became officially "vessels of the Navy" and subject to the Navy Department administrative vessel-damage settlement authorization (Act of 3 July 1944, 58 Stat. 726, 46 U. S. C. 797). The Judge Advocate General has issued a detailed 10-page pamphlet, "Admiralty Claims" (NAVEXOS P-658), setting forth in detail the investigation, reporting, survey and settlement procedures which apply to all naval vessels. Copies can be had upon application to the Office of the Judge Advocate General (Attn: Admiralty Claims Branch), Navy Department, Washington 25, D. C.

Frequently, one wishes to obtain an official version of the various sets of Navigation Rules. Prior to the 1948 issues, these had appeared in Navy Regulations. They are set forth in a very convenient form in Farwell on The Rules of the Nautical Road, Griffin on Collision, and in several other publications. The Coast Guard issues a series of pamphlets, setting forth each set of rules and any regulations adopted thereunder. These are obtained upon application to the Commandant of the Coast Guard, Washington 25, D. C.

Published monthly by the Judge Advocate General of the Navy in the interest of true justice. The mission of the JAG JOURNAL is to promote legal forehandedness among naval personnel charged with the administration of naval law. The goal to be attained through this unofficial medium of instruction and review for those untrained or trained in law is the clear understanding of the basic laws governing Navy life and of the rights and obligations of naval personnel.

The editorial policy has been established as one of informality, to insure that articles are presented in interesting form. Its pages are citable in Navy judicial proceedings and will be accorded such weight as the respective courts may determine, when unsupported by official reports of cases referred to therein. Court Martial Orders and opinions of the Judge Advocate General remain as the Navy's official sources of precedent, binding upon courts as such.

Views on controversial topics expressed herein by individual authors must be construed as being their own personal views, not necessarily bearing the endorsement or approval of the Navy Department or of the Judge Advocate General.

The printing of this publication has been approved by the Director of the Bureau of the Budget, 13 July 1948.

RADM. G. L. RUSSELL, USN
Judge Advocate General of the Navy

CAPT. E. E. WOODS, USN

Assistant Judge Advocate General of the Navy

COMDR. T. F. RYAN, USNR Editor

LCDR. G. H. ROOD, USN Associate Editor

For sale by the Superintendent of Documents,

U. S. Government Printing Office, Washington 25, D. C. Price 10 cents, $1.00 per year, $1.35 Foreign

HAPPY BIRTHDAY

The JAG JOURNAL is 3 years old, this August of 1950. In other years we have reported progress, but this year we're not going to do that. In the first place, we're too busy getting out the straight dope on the Uniform Code of Military Justice, and in the second place, there is little to report that's new.

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By MAJ R. A. Scherr, USMC HE ACCUSED, a naval officer, was brought to trial for murder. The specification alleged that he killed his victim by stabbing him with a knife. The pretrial investigation revealed evidence which strongly pointed to the guilt of the accused. His only explanation was his denial of the crime and an alibi which he was unable to corroborate. The prosecution, at the trial, presented its case and the accused offered his alibi in defense.

The accused's testimony, though uncorroborated, sounded quite convincing and the judge advocate considered it appropriate to offer evidence in rebuttal. The prosecution witness who was the only one who identified the accused at the scene of the crime, at the time of the murder, began, on cross-examination, to waver, finally broke down and admitted he had lied, and confessed that in fact he, himself, had murdered the deceased.