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on shore". Under Art. 24, A.G.N., "[le-
It may be observed with satisfaction by all who are proud of the Navy's record in the field of justice that these evils, when they arise, are dealt with on the higher levels of authority. The files of this office include letters and dispatches to individual commanders, advising them to discontinue improper precedures, and it may not be doubted that the same is true of BuPers when irreglarities in service record entries of mast punishments were noted. When irregularities show any trend toward becoming widespread practices, the service as a whole will be warned to "cease and desist". SecNav and the Bureau and Office Chiefs remain members of a strong hegency to insure able government by the Navy's Kings.
provided for in Article D-7027(2), are based upon (1) confinement by sentence of court martial, (2) arrest for trial, and (3) conduct on shore which is discreditable to the service. The only other basis remaining for depriving a person of liberty is as a punishment by the contanding officer for an offensc committed, as provided for by Articles 24 and 25 A.G.N. Since deprivation of liberty as a mast punishment is not specifically excepted, it must be deemed to be subject to the twelve-day limitation. Any other interpretation would result in no provision being made for any limitation whatsoever, and would leave this Article meaningless. The Judge Advocate General is of the opinion that Article 1- 70 27(2), Pureau of Naval Personnel Vanual, indicates an intention to limit mast punishment as to deprivation of liherty on shore to twelve days, and thus is in effect a limitation
tie commanding officer in the same Naval Courts and Foards, sec. 457, lim
its punishments by courts martial. (b) The limitation of hours of extra duty
that the commanding officer is author-
Yow. 390, 13 L. Ed. 1036. (c) The status of men as regards restriction
during the period they are performing
Among the transfers listed in this issue appears the name of Captain diyron 11. Avery, LSNR, released to inactive duty. The Admiralty Section of the JAG Office cont inues under his able guidance, however. lle has been retained by the Navy Department in civilian status as Admiralty Counsel, Navy Department. The change of designation from Chief Admiralty Officer should be noted for use in correspondence.
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. For this reason its pages are not citable as legal authority in any judicial proceedings. Court Martial Orders and Opinions of the Judge Advocate General will continue to be the authoritative sources of citable decisions and legal precedent.
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. REAR ADM. 0. S. COLCLOUGH, USN
Judge Advocate General of the Navy REAR ADM. G. L. RUSSELL, USN
Assistant Judge Advocate General of the Navy
Lt. D. L. Garver
Capt. E. L. Woodyard Planning
Comdr. R. E. Ryan
Lt. Comdr. C. R. Harrison
Capt. M. H. Avery
Editor Tort Claims
Lt. D. L. Garver Laws of the Eightieth Lt. Comdr. C. R. Harrison Congress
DECEMBER 1947 Business Upswing
Lt. D. L. Garver Mens Rea
Lt. Comdr. T. H. Humphreyɛ Administrative Law
Lt. Comdr. C. C. Smith Training for Law
Specialist Reserves Comdr. R. E. Ryan
Lt. Comdr. M. K. Greenberg
Lt. R. Bachrach
Lt. Comdr. M. B. Frazee
Editor Larceny or Embezzlement? Lt. Comdr. H. H. Gearinger
FEBRUARY 1948 Ethics of Prosecution
Editor Legal Aid
Comdr. R. E. Ryan Admiralty
Capt. M. H. Avery Reserve News
Editor Haebeas Corpus
Capt. R. A. Scherr, USMC
and Lt. Comdr. W. L. Keating, USN
Maj. F. J. Mee
Search and Seizure
bursing Officers Admiralty
Lt. Comdr. R. W. Foster
Capt. M. H. Avery
By Commander Luis V. Castro, USN In the naval profession, the expressionis the poisoning of a victim by an innocent party who “buddy," "shipmate,” and “pal” denote degrees had no knowledge of the lethal contents of a glass of relationship among its members, a natural out- of liquor given to him by the perpetrator for degrowth of their daily association, of the sharing livery to the victim. of the perils of the sea and of the innate desire of An aider and abettor, or principal in the second both officers and bluejackets to establish friend- degree is one who aids, counsels, commands, or ship bonds with those with whom they associate encourages the commission of a crime in his actual in the performance of their duties. In the realm or constructive presence. He differs from the of mischief, the otherwise innocent associates be- principal in the first degree in that he does not come the undesirable accomplices or partners in commit the crime himself or with the aid of an crime.
innocent agent. It is particularly important to The legal scope of the term “accomplices” is well bear in mind that the one circumstance primarily established in naval law. It includes all“partners- distinguishing the principal in the second degree in-crime” whether they are considered in strict from the accessory before the fact is that of actual legal propriety as principals in the first or second or constructive presence at the scene of the crime. degree, or merely as accessories before or after In addition to his presence at the scene of the the fact. The generally accepted test as to whether crime, the principal in the second degree must, by one is an accomplice in naval law is whether he some act or omission, word, sign, or motion, unhimself could have been indicted for the offense mistakably reveal his purpose of encouraging, ineither as principal or accessory. If he could not, citing, or approving the crime. An enlightening then he is not an accomplice (C. M. 0. 106, case is that of two drivers of different vehicles who 1918,2).
were engaged in a race on a public highway, each There are four recognized types of accomplices: inciting the other to drive at an excessive speed. (1) The perpetrators or principals in the first As a result of such conduct, a pedestrian was struck degree (VOTE.—In naval law, there is no distinc- and killed by one of the vehicles. It was held that tion between principals in the first degree and
the driver of the latter vehicle was a principal in principals in the second degree); (2) the aiders the first degree, and the other driver was a princiand abettors or principals in the second degree;
pal in the second degree. (3) the inciters or accessories before the fact; and One may be an aider and abettor of a crime by (1) the criminal protectors or accessories after the merely standing by for the purpose of giving aid fact. Pursuant to Naval Courts and Boards, sec- to the perpetrator if necessary, provided, of course, tion 41, no distinction is made in charging princi- the latter is apprised of this purpose. A unique pals and accessories before the fact. Accessories situation was presented in C. M. O. 1, 1942, 207. after the fact, however, are charged under the sev- The accused, X, was charged as an aider and abetenteenth paragraph of the 8th A. G. N. (N. C. B. tor of Y, a pharmacist's mate, who maimed himself Sec. 73). Accessories after the fact retain, how- deliberately in the former's presence. The eviever their intrinsic classification of accomplices.
dence showed that X was not merely witnessing a Perpetrators, or principals in the first degree are crime without intervention, but was present for those who commit the overt acts constituting the the purpose of rendering first aid and did, in fact, crime. Thus, a perpetrator is the deliverer of render first aid to the “perpetrator-victim.” It the fatal blow in homicide, the person who alters
was held that, since the accused had aided and the signature in forgery, or the one who absents abetted the commission of the maiming, by standhimself in desertion and unauthorized absence. ing by to give first aid while the act was being acPerpetrators also are those who, while not per- complished, he was a principal (in the second deforming the overt acts themselves, indirectly do gree) of the offense committed. so by means of an innocent party or agent. Illus- The inciters, or accessories before the fact, are trative of this type of perpetrator is the case of those who aid, counsel, command, or encourage
the commission of a crime without being present actually or constructively at its perpetration. It is well settled that one who incites the commission of a crime is guilty even if the perpetrator varies the method of perpetration. Thus, where X and Y, enlisted men stationed at a naval base, conspire to steal cigarettes, X advising Y to remove the cigarettes from government custody and to place them in a private vehicle for removal from the naval base by X, and Y removes the cigarettes, places them in a Government vehicle and takes them outside of the naval base, X is, nevertheless, an accessory before the fact to the theft of cigarettes.
An interesting case involving the three categories of accomplices discussed so far is reported in C. M. O. 8, 1922, 8. Thirty-three marines, divided into three groups, engaged in an affray with native policemen. The majority of the marines were armed with sticks, three of them had firearms. Three native policemen were shot at and killed. Some of the marines were not seen at the affray, but were shown to have been parties to the arrangements preliminary thereto. The specification under the charge of manslaughter, for trial in joinder, alleged that the accused "did each * and in concert one with another, shoot, with deadly weapons, to wit, firearms
and did inflict mortal wounds *" Categorizing the participants in this episode, those who fired the fatal shots were perpetrators; the other marines who actively engaged in the affray were aiders and abettors; and, finally, those who took part in the preliminaries, but who were absent from the affray, were accessories before the fact, and consequently, liable as principals under naval law.
The criminal protectors, or accessories after the fact, are those who render assistance to a criminal in an effort to hinder or to prevent his detection, arrest, trial or punishment. Four conditions must exist to render one an accessory after the fact: (a) A crime must have been committed by another: (b) the accessory must not have been guilty of the crime as a principal; (c) the accessory must have done some act to assist the criminal in the latter's efforts to avoid the consequences of his crime; and (d) the assistance must have been rendered with knowledge of the crime. The distinction between principals and accessories is not applicable to treason since those who aid traitors in their efforts to save themselves from the legal consequences of their crimes are indictable as principals.
An accessory after the fact is illustrated in the case reported in C. M. 0. 1, 1944, 174. Two enlisted men, A and B, were charged jointly with housebreaking and theft. A broke into an officers' club and took and carried away money found therein. Together the two men ran off with the money, some of which subsequently was found in B's locker. B claimed the money belonged to A, that after A had committed the housebreaking and theft he had given B some money which the latter accepted. B admitted knowledge of the crimes after they had been committed. The finding as to B on the above charges and the specifications thereunder were set aside. It was held that B was not a principal, and that if he was an accessory after the fact he should have been charged as directed by section 41, N. C. & B.
In earmarking the various classes of accomplices naval courts martial are faced with an exacting judicial test. In C. M. 0.9, 1945, 407, two enlisted men, F and J, were tried on a specification alleging that they did, each and together, take and carry away a certain amount of seastore tax-free cigarettes. The prosecution introduced in evidence a signed statement, voluntarily made by J, in which he admitted that on the night in question, he met F outside of the master at arms hut on the base; that Frequested his assistance for the purpose of removing some cigarettes from the base; that he accompanied F to a place near the building where they filled a seabag full of cigarettes, and then took them to the home of F's brother-inlaw; and that he, J, knew at the time that he began to assist F that the latter had stolen the cigarettes. Upon taking the stand, J admitted substantially all the facts but denied helping F steal the cig. arettes from the building.
Faced with the problem of determining J's criminal status, if any, the court properly concluded that J was guilty as a principal. The majority of modern decisions hold that a person who assists in carrying away stolen property after the original taking by another, knowing the property to be stolen, even though such person did not assist or know of the original taking at the time thereof, is guilty of theft as a principal. Not only does this case properly apply the law with respect to accomplices, but also it forecloses any possible confusion with such crimes as "receiving stolen goods” or “compounding a felony”. In this regard, it is easily distinguishable from the case reported in C. M. O. 3, 1931, 18, where Z, who re