rule under the authorities that proof of circumstances that would properly charge the accused with knowledge that the claim was false or fictitious, is sufficient. The subdivisions include a wide range of false claims, such as: disbursements to government employes; disbursements in the secret service; for horses lost in battle; for recruiting expenses; for transportation of public stores; for pay of soldiers on falsified muster rolls; for fuel for a detachment; for false vouchers indicating the delivery of supplies not in fact furnished; forging the name of a commanding officer in order to procure payment of an amount not in fact due; the use of teams and tools of the government in work for private citizens; loaning the property of the government to others.76 § 3499. Mutiny-Proof.-Mutiny or sedition is punished by death or otherwise as a court-martial may direct." The offense consists of an "unlawful opposing or resisting of lawful authority, with intent to subvert the same, or, to nullify or neutralize it for the time." Mutiny is clearly distinguished from offenses punishable under other articles. It is not even the same as "mutinous conduct," or disrespect toward a superior officer, or the offer to do violence to a superior officer.78 The offense is generally a concerted proceeding, but it is not necessarily a joint offense; it may be committed by a single person.79 Mere disorders on the part of one or more, which stop short of overt acts of resistance; or acts which show no deliberate intent to overthrow superior authority, do not amount to mutiny. Disorderly conduct, while intoxicated, accompanied by resistance of superior authority is not mutiny. Even violence to an officer, in the absence of proof of an intention to overthrow his authority, will not establish the offense. And it is held that proof of insolent language or disorderly behavior is not sufficient to sustain a charge of mutiny.80 246; United States v. Jones, 32 Fed. 482. 76 McClure Dig. Opinions, §§ 109, 110, 112; 2 Winthrop Mil. Law & Pr. 1084-1092 and notes; G. O. 98 of 1905. "Article 22; McClure Dig. of Opinions, § 31; 2 Winthrop Mil. Law & Pr. 892. 78 McClure Dig. of Opinions, § 31; 2 Winthrop Mil. Law & Pr. 892. " McClure Dig. Opinions, § 31; VOL. 4 ELLIOTT Ev.-49 2 Winthrop Mil. Law & Pr. 894, 898, 899. 80 United States v. Smith, 3 Wash. (U. S.) 78, 27 Fed. Cas. No. 16344; United States v. Kelly, 4 Wash. (U. S.) 528, 26 Fed. Cas. No. 15516; United States v. Hemmer, 4 Mason (U. S.) 105, 26 Fed. Cas. No. 15345; United States v. Haines, 5 Mason (U. S.) 272, 277, 26 Fed. Cas. No. 15275; United States v. Thompson, 1 Sumn. (U. S.) 168, 171, 28 Fed. The refusal to obey an unlawful order, though done by a combination, will not sustain a charge of mutiny. But the unlawfulness of the act must be manifest and unquestionable to justify the resistance. So, it has been held that resistance to an attempted enforcement of orders by illegal means was not mutiny.82 § 3500. Mutiny-Intent.-It is generally recognized that the intent is the gist of the crime of mutiny. To establish the offense the intent must be proved. Proof of the intent may be made in different ways. It may be shown by proof of declarations, or it may be inferred from conduct. Col. Winthrop says: "The intent may be openly declared in words, or it may be implied from act or acts done; as, for txample, from the actual subversion or suppression of the superior authority, from an assumption of the command which belongs to the superior, a rescue or an attempt to rescue a prisoner, a stacking of arms and a refusal to march or do duty, taking up arms and assuming a menacing attitude; or it may be gathered from a variety of circumstances. No one of which perhaps would of itself alone have justified the inference. But the fact of combination, that the opposition or resistance is the proceeding of a number of individuals acting together apparently with a common purpose is, though not conclusive, the most significant, and the most usual evidence of the existence of the intent in question." But proof of intent alone is not sufficient to establish the offense. The crime is not made out unless the proof shows some act or acts of opposition or resistance. Proof of words alone cannot convict on a charge of mutiny.84 § 3501. Mutiny-Suppression.-An officer or soldier who is present at any mutiny or sedition and does not attempt to suppress it, or who, having knowledge of such mutiny, fails to give immediate in Cas. No. 16492; United States v. 81 McClure Dig. Opinions, § 32; 2 Winthrop Mil. Law & Pr. 897; United States v. Smith, 3 Wash. (U. S.) 525, 27 Fed. Cas. No. 16345; United States v. Borden, 1 Sprague (U. S.) 374, 24 Fed. Cas. No. 14625. 82 2 Winthrop Mil. Law & Pr. 897; formation may be punished.85 The rule of proof on a charge under this article is thus stated by Col. Winthrop: "To sustain a charge of a violation of the article under consideration, the following particulars should be averred and proved: the existence of an actual mutiny; the presence of the accused at the mutiny, or the fact of his having come to the knowledge that one was intended; the neglect or failure to use the proper efforts to suppress or the neglect or failure to give the information (or to give it without unreasonable delay) to the commander."86 § 3502. Relieving the enemy. The act of relieving the enemy in any manner is punished by death, or as a court-martial may direct. 87 This offense can only be committed in time of war, and the degree of punishment would depend naturally on the heineousness of the offense. The act is not recognized as treason, yet it is treasonable in its nature, and this is the only manner for punishing treasonable acts by court-martial. The offense consists in furnishing or supplying the enemy with the forbidden articles; an attempt to do so is not an offense under this article. Proof of giving or selling the forbidden articles is sufficient; the question of need on the part of the enemy does not enter into the consideration. Nor is it required to show that the articles were furnished to the enemy's government or army. The offense is established if the proof shows a furnishing of such articles, directly or indirectly to a citizen, or to citizens, or to a member or members of the military establishment. Relief afforded to individuals is relief to enemies within the meaning of the article. Furnishing relief to prisoners of war is not within the article.ss Civilians are subject to trial before court-martial for violations of this article.89 88 § 3503. Sleeping on post.-A sentinel sleeping upon his post, or leaving it before he is regularly relieved, shall suffer death, or such other punishment as a court-martial may direct. 90 The purpose of this article, it seems, is to afford the security in camp or barracks that is required in time of peace as well as in time of war. And it is of the 85 Article 23. 86 66 2 Winthrop Mil. Law & Pr. 906. 67 Article 45. 88 Venice, The, 2 Wall. (U. S.) 258; Alexander's Cotton, 2 Wall. (U. S.) 404; Prize Cases, 2 Black (U. S.) 635, 666; Gooch v. United States, highest importance in time of war; it is absolutely essential to prevent surprise and capture. In making proof under this charge is first to prove that the accused was duly detailed to post or sentinel duty; this may be done by the proper officer. This is then followed by proof that he was found asleep by some officer, or other person by whom he was so found. It may be difficult to prove the actual fact that the accused was sleeping, especially in the night time. But the law does not require unreasonable things, hence, proof that the accused, while so on guard duty, failed to challenge the person approaching the post; that he was found lying down, sitting or reclining-in some position in which he could sleep; or that he was breathing hard, or snoring, was not aroused until touched, and was then stupid; or that he was not holding his gun, any and all such facts and circumstances may be given in evidence as tending to establish the charge, and from which the fact of sleep may be presumed. It is no defense to such a charge that the accused was irregularly posted as a sentinel; or that he had previously been overtaxed by extra guard duty; or that similar offenses had been overlooked. But in such cases it is proper to show any extenuating circumstances, or any facts that might mitigate the punishment."2 92 01 McClure Dig. Opinions, § 55; 2 Winthrop Mil. Law & Pr. 952. 92 "22 Winthrop Mil. Law & Pr. 953. INDEX. [References are to Sections.] A ABANDONMENT, salvage for recovery of derelict property, 3357. ABDUCTION, age of consent, previous bad character not a defense, when, 2756. belief of defendant as to victim's age, 2752. child without parents or legal guardian, proof concerning, 2749. corroboration of principal witness, 2757. defense, bad character of victim, 2756. definition and meaning of, 2740. under different statutes, 2734, 2735, 2740. intent, sufficiency of proof, 2744. kidnapping, law concerning, 2735-2739. presumption concerning, 2755. proof of detention against the will, 2747. residence, proof to establish taking from, 2749. subsequent bad character of victim not competent, 2753. taking against the will of person abducted, 2751. taking away or detention, proof sufficient, when, 2742, 2743. taking from home, time of detention immaterial, when, 2748. parents without consent, 2750. unchastity within age of consent as a defense, 2756. ABILITY, assault, elements of, 2822. striking distance, 2826. what constitutes present ability, 2823. |