he may intend to return when the evasion of the service is accom- Ch. III, plished, is liable to be convicted of desertion just as if an intention never to return had been proved against him. Thus if a man on the eve of the embarkation of his regiment for foreign service, or when called out to aid the civil power, conceals himself in barracks, the court will be quite justified in presuming an intention to escape the important service on which he was ordered and in convicting him of desertion. 17. A man may be a deserter though his absence was in the first Desertion instance legal (e.g., being authorised by leave on furlough), the man furlough. criterion being the same in all cases, namely, the intention of not returning. It is clearly shown by the King's Regulations, and by the explanation on the furlough itself, that a soldier on furlough is still under orders, and that, if without leave, he quits the place to which he has permission to go, or if he disguises or conceals himself so that orders cannot reach him, or if he goes on board a ship about to sail for a distant port, he is liable to be tried and convicted of desertion though on furlough at the time. A soldier, for example, at Ipswich, who obtains a pass to Bristol, and during his leave when without permission to go to Liverpool is found there in civilian costume on board a ship about to sail for New York, may be tried for desertion. It would be for him to show that the absence without leave from Bristol proved against him. was innocent, and had nothing to do with desertion. desert. 18. If a soldier commits an act which is apparently a prelude to, Attempt to or an attempt at, desertion, although no actual absence can be proved, as if he is caught in the act of slipping past a sentry, or climbing Lover a barrack wall in plain clothes, he may be charged with an attempt to desert. 19. The fact that a soldier surrenders is not proof by itself that Soldier sur rendering he intended to return, even though he is in uniform at the time of himself. surrender. The prosecutor may not be able to prove where the man has been during his absence, but evidence that the military patrols had searched carefully in the neighbourhood of the barracks without finding him, would show that he must have gone to a distance or concealed himself. From this and other circumstances the court may infer that he surrendered because he could not effect his contemplated escape. as to 20. A soldier charged with desertion may be found guilty of General attempting to desert or of being absent without leave; and, on the provisions other hand, a soldier charged with an attempt to desert may be desertion. found guilty of actual desertion or of being absent without leave (a). In any case of doubt as to whether one or the other offence has been committed, the court should find the prisoner guilty of the less offence. A soldier guilty of desertion forfeits all his prior service, and is liable to serve for the term of his original enlistment, reckoned from the date of his conviction, or of the order dispensing with his trial (b). 21. As a general rule, a soldier quitting his corps and enlisting Fraudulent in another should not be charged with desertion, but with fraudulent enlistment. enlistment, for the very act of his enlisting in another corps (unless in an exceptional case) shows that he did not intend to leave His Majesty's service. On the other hand, if he does so for the purpose (a) See Army Act s 56 (3), (4). (b) Army Act, s. 79. As to court of inquiry, in case of absence without leave for twenty-one days, see s. 72; and as to procedure in case of confession of desertion or fraudulent enlistment, see s. 73. (M.L.) B 2 Ch. III. of avoiding a particular service-e.g., service abroad-or if during his absence he conducted himself so as to show that when he quitted he did not intend to return to the service, but changed his mind -he is, as above pointed out, guilty of desertion, and may be tried accordingly. But as already observed, it will suffice, except in very special cases, to prefer a charge for fraudulent enlistment alone. Stealing and em 22. Stealing and Embezzlement.-Ordinary thefts from civilians bezzlement, are left by the Act to be dealt with by the civil courts, or they may when tried be tried by court-martial under s. 41 as civil offences; but the by courtoffence of stealing or embezzling the money or property of an martial. officer or soldier or of any military institution has, in accordance with long-established practice, been made expressly punishable as a military offence (a). Stealing from a comrade. 23. Stealing from a comrade is regarded as peculiarly disgraceful, seeing that in the daily routine of barrack life, soldiers must constantly leave their arms, accoutrements, or kits exposed, as well as private property, such as money, watches, pipes, &c., trusting to the honour of their comrades. When missing articles are private property, and are found in the possession of another, there is a strong presumption that they were stolen, especially if the accused absented himself, and is discovered to have pawned or sold them. But 10 must be recollected that an intention to steal is essential, and that the mere taking of an article without that intent is not criminal. So that if a soldier openly takes an article belonging to another, and returns it, or, though he absented himself, did not secrete the article or make any attempt to sell or pawn it, then the presumption is against his being guilty of stealing. It will often be desirable to obtain evidence as to any custom of borrowing which may have prevailed in a particular room, or as between the accused and the owner of the article or other comrades, and as to any other circumstance tending to show whether the accused might reasonably have supposed that his taking the article would not be objected to. The restoration of an article does not, of course, by itself prove that the article was not stolen, but evidence of the above nature will often go far to show whether an article was in fact stolen or not. Again, the accused may show that he obtained the articles in a bona fide transaction, or that he found them apparently without an owner, and without any name or mark on them by which the owner could be found. The fact of lost articles being found in the valise, or in the bed of a soldier, is not by itself proof that he stole the articles. They might have been put there unknown to him, perhaps intentionally by the real thief. A soldier should not in such a case be tried for stealing unless there are other circumstances from which it might be inferred that the articles were in his valise or bed with his knowledge. Evidence that a soldier was a suspected thief, or that he had on previous occasions stolen other articles from other comrades, is not admissible to show that he had anything to do with a particular theft; but such facts might be adduced as evidence that the taking of articles found in his possession was not innocent (b). The improper possession by one soldier of a comrade's necessaries, where there is no evidence of theft, is a different question: it is not an offence against the comrade, (a) Theft from a comrade will as a rule be tried by court-martial under s. 18 (4) of the Army Act, K.R., para. 556; but under special circumstances, such as those in the case of Marks v. Frogley, L. R. [1898] 1 Q. B. 888, where the theft was alleged to have been committed immediately before a volunteer corps quitted the camp where they had been trained with regulars, may be tried by a civil court. (b) See ch. VI, paras. 22-24. but is an offence against military rules, and may, irrespectively of Ch. III. any fraudulent intent, be punished under s. 40. ment. 24. The offence of embezzlement under this Act is committed Embezzlewhere one entrusted with the care or distribution of public or regimental money or property, and, being thus in lawful possession of it, appropriates it to the use of himself or of some person connected with him (a). A subordinate is frequently tempted to commit the offence, if he finds that his transactions are not regularly supervised, and that minor irregularities pass unnoticed. All officers, therefore, who have to do with the supervision of canteens or the accounts of pay sergeants or other non-commissioned officers, should be most careful to see that the forms and regulations of the service are strictly and invariably observed. Nothing con ha mara uninst and i. ... .. (i.) Para. 25. In line 1, after insert 11 han for an offic "Drunkenness " "Section 19 of the Army Act creates only one (ii.) Para. 26. In lines 6 and 7, for "guilty of simple and 12, for simple 66 cases of drunkenness (iii) Para. 27. In lines 11 In line 15, for "simple drunkenness of" sub- charged (iv) Para. 28. In line 1, for "the offence of being 'drunk on duty'" substitute drunkenness on duty. mone preceding 12 months, or unless the offence was committed on active service or on duty, or after the offender was warned for duty, or when the offender was by reason of drunkenness found unfit for duty. Although, therefore, under s. 19 courtsmartial have complete jurisdiction to try and punish simple drunkenness, and this jurisdiction is not limited by s. 46, yet a commanding officer will be guilty of a grave breach of duty and of an offence against the Act, if he disregards the directions in s. 46 with respect to dealing summarily with simple drunkenness of a private soldier (c). drundreness on duty 28. In a military point of view, the offence of being "drunk on Drunkenduty" is considered in reference to the soldier being fit or not fitness of for duty. There cannot be any distinction such as drunk, or very duty. drunk, when on duty. Soldiers therefore are carefully inspected before being put on duty, so as to ascertain their fitness. If the superior, knowing a man to be drunk, out of good nature allowed (a) See s. 17 and note; and as to the embezzlement generally, see ch. VII, para. 59 As to orders for restitution of stolen or embezzled property, see s. 75. (b) Ss. 46, 183 (1). And see K. R. 499. (c) See K. R., paras. 508-513. The directions in s. 46 do not affect the right of the soldier to elect to be tried by a district court-martial, s. 46 (8). soldier on Ch. III. him to proceed with the duty, or, if through carelessness, he passed a man as sober when he was not sober, then it would be desirable as a rule to try the man for being drunk, and not for being drunk on duty. Dru ness soldi bein warr duty Drunken A soldier on the line of march is on duty from the beginning. In line 13, for "may, if necessary, be tried for been warned as (for example) if summoned from a canteen or from some public sports-and found to be unfit for duty, should in practice be dealt with as for simple drunkenness. 30. In the offence of simple drunkenness there are practically das fan tha numana of the amount of nuniahmant and ness of vario soldier not on duty evide ness, that justif Drunken ness considered in relation to other crimes. drunl and being frami to a s will g for d s. 40, only, ness fine ( 31. not a accon no ex offenc punis reduc (v.) For para. 29, substitute "In ordinary routine circumstances, a soldier unexpectedly called on to perform some duty, for which he has not been warned-as (for example) if summoned from a canteen or from some public sports-and found to be unfit for duty, should in practice be dealt with as for ordinary drunkenness." (vi.) Para. 30. Substitute for the first four lines : "In the offence of drunkenness the attendant circumstances affect the amount of punishment, and evidence should be given in all cases as to the circumstances. If the offender committed the offence while on duty, or after having been warned for duty, it should be so stated. Evidence will also be given as to whether the drunken man was riotous or not, so Delete the marginal note, and substitute "Drunkenness-Evidence to be given of the circumstances." ordinarily steady respectful man commits himself when drunk by the use of insubordinate language, it may be clear that he did not really intend to be insubordinate; and though the offence cannot be passed over, yet a more lenient punishment will meet the justice of the case, than if the same man had used the same language deliberately when sober. So, too, acts, which if done deliberately would show a wilful defiance of authority, may, if the man were drunk, be regarded as amounting only to the less offence of simple disobedience. So, too, if it should appear that a man absenting himself under circumstances which might ordinarily show an intention of not returning, was drunk, the court would be justified in treating the absence as a mere drunken frolic, and finding the man, though charged with desertion, guilty of absence without leave. So again, a man so drunk as to be incapable of attending parade, (a) See K.R., para. 510. (b) K. R. para. 497. should be charged with drunkenness rather than with an offence Ch. III. under s. 15 (2) of the Act. 32. The remaining sections of this part of the Act relating to Conduct to military offences do not call for special notice in this Chapter, with prejudice of military the exception of the proviso to the section (40) dealing with conduct discipline. to prejudice of good order and military discipline, which provides that no charge shall be made under that section, for an offence which is a specific offence under any other provision of the Act, and is not a civil offence; although the conviction of a person so charged is not necessarily invalidated. Before, then, an offender is charged under this section, the convening officer must satisfy himself not only that the act, conduct, disorder, or neglect is to the prejudice of good order and military discipline, but also that it is not any one of the offences specifically punishable under the Act. If he fails to do so he will be responsible for contravening the Act, notwithstanding that the conviction is not invalidated. Attempts to commit offences specified in the Army Act are not, with one or two exceptions, specitically made offences, and therefore can be tried under this section. But civil offences, e.g., frauds, should not be tried under this section. "on active 33. An important distinction is made by the Act, in that certain offences offences are punishable more severely when committed on active committed service (a) than at other times. Instances of this distinction will service." be found in sections 6, 8, 9, and elsewhere. A sentinel, for example, found asleep or drunk on his post, while on active service, would be fiable to suffer death if the character and circumstances of the offence were sufficiently grave, while if he were not on active service he could at the utmost be sentenced to imprisonment (b). Supposing the evidence on the trial to prove that an offence charged as having been committed on active service was committed not on active service, the offender may be found guilty of the latter offence only, and be sentenced accordingly to the less punishment (c). law. 34. Jurisdiction is given by s. 41 to courts-martial to try Offences ordinary civil offences, from murder and treason downwards, when punishable committed by persons subject to military law. The limitations on by ordinary the exercise of this jurisdiction and the other provisions of the section are explained in Chapter vii (d); which also contains for the information of officers who may have to try such offences, a short statement of the laws relating to them. ments. 35. Having laid down the offences, the Act enacts (s. 44) a scale Scale of of punishment for officers and soldiers respectively. With two punishexceptions, each particular offence laid down in the Act has a maximum punishment assigned to it; and then, by s. 44, provision is made enabling a court-martial to award a less punishment. If, for example, the maximum punishment assigned to an offence is penal servitude, either imprisonment or any one of the punishments lower in the scale for officers and soldiers respectively can be awarded in its place. The punishments named in the Act for each particular offence are maximum punishments, and a maximum punishment is only intended to be imposed when the offence committed is the worst of its class, and is committed by an habitual offender, or is committed under circumstances which require an example to be made. The two exceptions from the above rule are the offence of behaving in a scandalous manner unbecoming the character of an officer and a gentleman, in which case the only (a) For the definition of "active service," see s. 189 (1). (b) Army Act, s. 6 (1) (k). (c) Army Act, s. 56 (5). (d) See also note to s. 41, |