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    816. COURTS MARTIAL are military courts instituted for the investigation and punishment of all offences committed by officers, soldiers, sutlers, retainers to the camp, and persons serving with the army, in violation of military law, and the custom of war. Their powers and duties are laid down in general terms in the Articles of' War, from Article 64 to 91 inclusive.

    817. Commissioned officers clothed with military rank, and entitled to command, are the only persons in the United States service who are eligible as members of courts martial; this excludes all paymasters, surgeons, and assistant-surgeons, whose rank is only assimilated.

    818. Courts martial are of three kinds, General, Regimental, and Garrison.

    A general court martial is competent to take jurisdiction over any offence of' a military nature, that can be committed by military persons; and its powers to award punishments are co-extensive with this right. Commissioned officers are not amenable to any other than a general court martial, and it is provided by Article 75 of the Articles of War, that they shall not be tried by officers of an inferior rank, if it can be avoided.

    819. A general court- martial can only be appointed or assembled by the President of the United States, by the Governor of a State as commander-in-chief of the forces of the State, by a general commanding an army, or by a general or colonel commanding a separate military department. The warrant for assembling the court, or the appointment of the members thereof, is in the form of an order, and issues directly from the officer to whom the law has delegated such power.

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    820. It is provided by Article 64 of the Articles of War, that general courts martial may consist of any number of members from five to thirteen inclusively; but they shall not consist of less than thirteen when that number can be convened without manifest injury to the service. It is to be observed, however, that the officer empowered to appoint a court, is invested with discretionary authority as to the number of officers which shall compose it, and their rank relatively to that of the accused.

    821. The proceedings and decisions of general courts martial are subject to review or revision by the officer ordering the same, or the officer commanding the troops for the time being. In the United States service no sentence of a general court martial in time of peace, extending to the loss of life, or the dismission of a commissioned officer; or which shall, either in time of peace or war, respect a general officer, cannot be carried into execution, until after the whole proceedings shall have been transmitted to the Secretary of 1Var, to be laid before the President of the United States for his confirmation or disapproval, and orders in the case. All other sentences may be confirmed and executed by the officer ordering the court, or the commanding officer for the time being, as the case may be. Every officer authorized to order a general court martial shall have power to pardon or mitigate any punishment ordered by such court, except the sentence of death, or of cashiering an officer.

    822. Regimental and garrison courts martial take cognizance of and punish officers of minor degree. The regimental court martial is ordered by the colonel or other commander of the regiment, for the trial of offences in the regiment; it consists of three commissioned officers.

    Garrison courts martial are in like manner composed of three commissioned officers, and appointed by the commanders of garrisons, forts, barracks, or other places, where the troops consist of mixed corps.

    The proceedings of regimental and garrison courts martial are submitted to the officers ordering them, or to their successors in command, for revision, and decision on the sentences pronouned. The jurisdiction of these courts is very limited, and can in no case extend to the trial of capital cases, or commissioned officers.

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    823. A court martial having been deemed necessary to investigate the conduct of an officer or soldier, against whom a charge has been preferred, the order appointing the members and judge advocate to compose the same, as well as tj-Je time and place of meeting, is duly promulgated.

    When the hour has arrived for assembling, the members of the court martial take their places at the table according to rank, on the right and left of the president, the latter at the head of the table. The judge advocate is seated opposite to the president. The prisoner and his counsel (if he has any) have a place assigned, with the necessary accommodation for writing, on the right hand of the judge advocate. The witness stands near the judge advocate on his left hand. In case a third party, as prosecutor, should be permitted to appear, he will be placed to the left of the judge advocate. The court being seated and called to order, no member can leave his seat without the permission of the president.

    It is usual for the judge advocate to prepare a copy of the charges for the use of the court, which is placed upon the table previous to the arraignment.

    The court having been called to order, and any preliminary matter which may have required their attention being disposed of, it is proclaimed open. The parties are then called, and appear in court.

    The prisoner, unless there be danger of escape or rescue, must appear without fetters, and free from shackles of any kind; when the court adjourns, the prisoner, if a soldier, is remanded to the hands of the guard.

    The judge advocate now reads the order for the assembling of the court. It is proper also to read the charges to be investigated, so that the court may have before them the matter which they are about to swear that they will "truly try and determine."

    824. The order for convening the court having been read, the judge advocate asks the prisoner if he has any objection to any member present named in the order, or any cause of challenge to present.

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    Peremptory challenge or challenges are not permitted, but the prisoner must assign his reasons in writing, or if brief, the judge advocate will record them as stated.

    In case a member should be challenged (and only one can be challenged at a time), the reasons therefor, and when susceptible of such, the reply or explanation offered, are committed to writing as a part of the minutes of the court, and make a portion of the proceedings; and the court is cleared in order to deliberate and decide on the objection assigned. The member objected to always withdraws during the discussion which follows, and of course does not vote on the question. Upon the re-opening of the court, the judge advocate (by direction of the court), makes known the decision, and the challenged member resumes his seat, or withdraws altogether, as the case may be, and a member in waiting, or supernumerary, if any be detailed, supplies his place.

    The judge advocate cannot be challenged on any pretence whatever.

    825. The judge advocate then proceeds to administer the prescribed oath; the members of the court, and the judge advocate stand; the person or persons to be sworn lift the right hand, ungloved, when the judge advocate recites in an audible voice, " You, Colonel A. B., Major B. C., Major D. F., and Captain G. H. (thus naming with his rank, each member of the court), do swear that you will well and truly try and determine," etc. etc. “So help you God." (See 69th Article of War.)

    The presiding officer then administers the oath to the judge advocate, who observes the same form; during which time, all the members of the court remain standing, and observe the most decorous silence and attention.

    The same oath prescribed to be taken by the members of a· general court martial, is directed to be taken by the members of a regimental and garrison court martial. No particular oath of secrecy is required of the recorder, as he is a member of the court.

    Whenever several persons are to be tried by the same court martial, upon different charges, the court must be re-sworn at the commencement of each trial, and the record of each case made up separately, and signed by the president and judge advocate.

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    826. The court having been sworn in the presence of the prisoner, the judge advocate reads the charge to the prisoner in open court, whom the judge advocate arraigns, by addressing by his proper title or rank, and name. "You have heard the charges preferred against you; how say you - guilty, or not guilty?"

    The prisoner may plead guilty or not guilty; but it must be made simply and unqualified, as nothing exculpatory can at this time be received. No special justification can be offered as a plea, as such would be an anticipation of the defence. He may stand mute, that is, refuse to answer; or answer foreign to the purpose; or may plead in bar of trial.

    The ordinary plea is "not guilty," upon which the trial proceeds. The plea being recorded, the judge advocate calls the first witness, and gives notice, that should there be any persons present in court who have been summoned as witnesses, they will retire until called for, as it is a rule, that the witnesses of neither party can be present during the examination of other witnesses.

    827. The witness is sworn by the judge advocate, and the same form of administering the oath is observed as was indicated for swearing in of the members. The words are: "You do swear (or affirm), that the evidence you shall give in the cause now in hearing, shall be the truth, the whole truth, and nothing but the truth, so help you God.”

    The name, rank, regiment, or corps, or distinctive condition of the witness is recorded by the judge advocate at length, so that the person may by the description be easily identified.

    The examination of the witnesses is always in the presence of every member of the court; and the "countenance, looks, and gestures of a witness,” are considered of importance as adding to, or taking from the weight of his testimony. The testimony is sometimes given in the form of a narrative, but more frequently by interrogations. Narration in many cases, is the most natural and easy method to observe, but interrogation is the more direct and searching means of soliciting evidence, and also the more certain. All evidence received is recorded in the order in which it is given, and as nearly as may be in the very words of the witness. In case a

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witness should be too ill to attend the court, the latter may adjourn to the room or bedside 6f the former to receive his evidence. Questions are reduced to writing by the party originating them, and read aloud by the judge advocate, who writes them on the proceedings. Should an objection be made to a question on examination, the court is cleared, and a majority of voices determines whether it shall be put or not.

    A question having been rejected, is not, therefore, expunged from the record, of which it makes a part, unless by consent of the parties before the court, but appears on the record, with the decision of the court. A party before the court cannot object to a question put by the court, though he may to a question put by a member of it, before the collective opinion of the court has been expressed in relation to it. All questions originating with members, and which have been received, are recorded as " by the court," but when made the subject of discussion, and rejection, they are entered upon the record as " by a member."

    When a witness is sworn, the party who calls him commences the examination, which is styled the examination in chief; that being finished, the opposite party asks what questions he may deem necessary, and this latter interrogation is called the cross-examination. A re-examination of the witness, by the first party, follows the cross- examination, upon such points as the latter may have touched on, find then the court put such questions as they may deem requisite, to elicit the whole truth.

    The examination of the witness having been completed, his evidence, if deemed necessary by the court, or if desired by him, is read over previous to his leaving, to give him the opportunity of correcting any errors therein. Accordingly, any remark or explanation, with such a view, is entered on the proceedings; but no erasure or obliteration of what has been previously stated can be made.

    Should either party perceive, after having concluded his case, that a material question has been omitted, he submits it to the court, who will always allow it to be put.

    The witnesses called by the prosecutor having been examined,

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and all the evidence to substantiate the charges submitted to the court, the prisoner enters upon his defence. Should it be necessary for preparation, the court, at the request of the prisoner, would grant time to enable him to proceed with more certainty or precision.

    Witnesses for the defence are examined in the same order, us those presented on the part of the prosecution. The prosecutor cross-examines, and the prisoner re-examines to the same extent allowed to the prosecutor.

    828. The examination of witnesses having been closed, the prisoner takes his time to address the court, when by argument and statement of facts as shown in the evidence, he presents to the court every consideration which may tend to weaken the force of the prosecution. The greatest liberty, consistent with strict propriety, especially in regard to third persons not before the court, is at all times allowed a prisoner; and he therefore may impeach, by evidence, the character of witnesses brought against him, and remark on their testimony, and the motives by which they and the prosecutor appear to have been actuated. Coarse and insulting language cannot, however, be tolerated.

    Should either party, in the course of their examination of the witnesses, or by bringing forward new ones for that purpose, introduce new matter, the opposite one has the right of calling other witnesses to rebut such new matter.

    The address (or defence) of the prisoner, prepared subsequent to the reception of all the testimony, is read by the prisoner, or if any cause should prevent his so doing, it may be, at the request of the prisoner, read by his counsel, the judge advocate, or a military friend.
The judge advocate, or the prosecutor, can always claim the right of replying to the defence of the prisoner, and the court will generally grant a reasonable time for the preparation of it. When the reply has been read, the trial is closed. Should the prisoner have examined witnesses as to matter not touched upon in the course of the prosecution; or should he have reflected upon the credibility of the prosecutor's evidence, the prosecutor is allowed to examine

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witnesses to the new matter, and for the re-establishment of the character of his witnesses.


    829. The charges having been investigated by the production and examination of all the evidence which the parties have deemed necessary, it is now the business of the court to decide upon the question of guilt.

    It is necessary, however, before proceeding to this stage of the trial, that each and every allegation made against the prisoner should be fully inquired into; and this, too, entirely without reference to the proof of any one item, which might even call for the uttermost sentence which a court martial can award, either against the life, or the commission of the offender; and so, too, must a distinct. judgment be pronounced upon every specification adduced in support of the charges.

    Every member should fully satisfy himself of the extent and value of the testimony on record; and, for this purpose, a fair copy of the proceedings is laid upon the table, or read over by the judge advocate, for the convenience of reference, and to make certain, while the subject or particulars of the evidence is still fresh in the minds of the members, that such copy is a faithful transcript of the same.

    This is of importance when the case is intricate, or the testimony voluminous; and it is also a very useful practice for the judge advocate, in such cases, to prepare an index, or short notes, of the evidence, in order that reference to the record may be made more easy.

    It is competent for the court at this stage of the proceedings, to call back a witness for the purpose of asking any particular question thought necessary; but the parties must be present during such further examination. Indeed, before the finding, the court can recall a witness at any time.

    830. The court having had sufficient time for a re-examination of the evidence, if necessary, and for deliberation and free discussion, the president, having ascertained that every member is ready

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to give his opinion, signifies to the judge advocate to proceed. The latter then reads, in consecutive order, the specifications to each charge, and addresses each member, beginning with the youngest: "From the evidence in the matter now before you, how say you of the specification, or charge - is the prisoner guilty or not guilty?" The vote upon each specification of the charge having been given and recorded, the opinion on the charge is then given - and so on in succession for all the specifications and charges, which have been the subject of investigation. In order to avoid the exposure of each individual opinion as his vote is given, the members write upon slips of paper the opinion, guilty or not guilty, and hand them to the judge advocate, who, after receiving every vote, arranges them, and announces the verdict. As the vote of each member is given, the judge advocate makes a minute of the same, which should be carefully retained by him, to meet the possible contingency of proceedings in the common law courts, touching the legality of the acts of the court martial.

    The majority of the voices determines the conviction or acquittal of the prisoner, except in such cases as when (upon conviction) the law absolutely, and without any discretion in the court, condemns him to suffer death. In all such cases, a two-third vote is necessary to conviction, and the record must explicitly state that two-thirds of the court concurred in the finding.

    Should it happen, by the organization of the court, or from the accident of sickness or death of any of the members, that there is an equality of votes upon the finding, the doubt must be resolved in favor of the prisoner, and he must have the benefit of acquittal.

    831. The degree of guilt of which the prisoner is found, or the extent to which the charge is proved, ought to be well defined and clearly expressed; and so, likewise, the mode of declaring the prisoner acquitted, is a matter of some importance. Acquittals which are characterized by the terms, honorably; most honorably; fully; or most fully; should be employed when the nature of the charge makes them necessary; but in general, when no circumstances exist which call for emphatic opinions, a simple verdict of

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acquittal is the better formula. To declare that the charges are not proved is improper.

    In the deliberation of the court upon the finding to be declared, it is proper to observe the distinctions which may be made between the crime as alleged in the charge, and the degree of offence proved. A court martial, therefore, may, in some instances, find a prisoner guilty of the offence in a less degree than that stated. But a court martial, although empowered to find him guilty in a less degree, cannot find a higher degree of guilt than that alleged in the charge.

    The finding declared by a majority, or specific proportion of all the court, when the law, in particular offences, requires such, is the decision of the court, and the minority are bound by it.


    832. The court, having determined the finding of innocence or guilt of the prisoner, proceed to the conclusion of their labors by pronouncing an acquittal, or affixing the punishment, according to the nature and degree of the offence.

    Whatever may have been the opinion of a member as to the finding of the court, he must, upon a conviction being declared by the legal number of votes, give his opinion as to the nature and degree of punishment, and apportion the same according to the degree of crime of which the majority have found the prisoner guilty. The minority then acts independently of their individual opinions, and award punishment according, and adequate, to the offence of the accused. If the prisoner has been convicted of a particular offence, for which punishment is prescribed by law, every member must vote the punishment which the law has prescribed. In cases not provided for by special penalty, it is of importance to the court to consider what kinds and degrees of punishment are legally applicable to the case, and none should be inflicted except such as are in accordance with the custom of war in like cases, or ~he common law of the land.

    833. In passing sentence, courts martial should be careful to employ clear and unambiguous language, so that the kind and degree

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of punishment shall be set forth definitely and precisely; and the mode of inflicting capital. punishment should be designated. The military laws do not say how a criminal, offending against such laws, shall be put to death, but leave it to the custom of war. Shooting or hanging is the method determined by such custom. A spy is generally hanged; and mutiny, accompanied with loss of life, is punished by the same means. Desertion, disobedience of orders, or other military crimes, usually by shooting.


    831. When the proceedings of a court martial are· submitted to the officer ordering the same, for his confirmation or disapproval and orders, it becomes his duty to peruse, in the most careful manner, the record of the court, and to ascertain any error which may have been admitted. Or should the record be found perfect in all its parts, he is to signify his decision thereon, and give his orders accordingly. But if any mistake or error in the conduct of the trial be presented to view, the proceedings of the court may be sent back to them for revision. The officer who directs the court to re-convene, to reconsider its original opinion, points out, at the same time, the particular cause which makes a reconsideration necessary; and the court is therefore bound to re-examine, with deliberation and care, the reasons upon which the former opinions rested. The principal cause for requiring courts martial to revise their judgments is when an insufficient or undue weight has been given to the testimony, and is supposed to arise from inadvertence, misconception of the law, or the custom of war; or where an exorbitant, inadequate, or illegal punishment has been awarded.

    Every officer having authority to review the proceedings of courts martial, has power to suspend the execution of the sentence, to pardon or mitigate any punishment ordered by such court. He cannot, however, alter or commute the punishment, even with the consent of the party sentenced.

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    835. By the laws of the United States it is made the duty of the judge advocate to "prosecute in the name of the United States, but shall so far consider himself as counsel for the prisoner, after the said prisoner shall have made his plea, as to object to any leading question to any of the witnesses, or any question to the prisoner, the answer to which might tend to criminate himself; and administer to each member of the court, before they proceed upon any trial, the following oath, which shall also be taken by all members of the regimental and garrison courts martial."

    The charges upon which a prisoner is to be tried having been placed in the hands of the judge advocate, he is to ascertain what witnesses or evidence will be necessary, both for the prosecution and defence, and thereupon summon every person whose testimony may be required. This duty should be performed at the earliest period possible, to avoid any delay in the proceedings. He is to furnish the accused party with a copy of the charges as soon as possible, or ascertain if such has been transmitted to him from another source; and should any alteration be made in the charges, the prisoner should be immediately apprized of it.

    Between the adjournment of one day, and the meeting on the next, the judge advocate prepares a fair copy of the procedings, which, upon the reassembling of the court, is read over.

    The business of the court having been concluded, the record of the proceedings is signed by the president of the court, and countersigned by the judge advocate.

    836. The duties of a judge advocate before a court of inquiry, are in many respects the same as officiating before a general court martial, though of limited extent.

    A court of inquiry may be composed of from one to three officers, with a judge advocate, or suitable person as recorder, to reduce the proceedings and evidence to writing; all of whom are to be sworn according to a prescribed oath. (See 95th Article of War.)

    The judge advocate prepares the case for investigation, He summons the necessary witnesses, and gives notice to the parties inter-

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ested, as to the place and time of meeting. He swears the witnesses in the same way as they are sworn before a court martial, and he records the testimony and keeps the proceedings from day to day.

    The business of the court having been completed, the record will be authenticated by the signatures of the president and the judge advocate, and by the latter transmitted to the authority by which the court was convened.

    837. Form of order for convening a general court-martial.

Adjutant- General's Office,
WASHINGTON, Jan. _,18-.

General Orders, No. -_ }

    A general court martial will assemble at _____, at 10 o'clock, A. M., the 15th instant, or as soon thereafter as practicable, for the trial of _______, and such prisoners as may be brought before it.

Detail for the court.

    1. Colonel A. B .............................................................................................................1st Regiment of Infantry.

    2. Colonel C. D............................................................................................................. 2d " " Cavalry.

    3. Major E. F .................................................................................................................3d " “ Artillery.

    4. Major G. H ................................................................................................................5th " " Infantry.

    5. Captain L. M .............................................................................................................1st " " Dragoons.

    6. Captain N. 0 ..............................................................................................................4th " " Infantry.

    7. Etc., etc., etc ..............................................................................................................______________

    Captain P. S., of the 2d regiment of artillery, is appointed the judge advocate of the court.

    Should any of the officers named in the detail be prevented from attending at the time and place specified, the court will nevertheless proceed to, and continue the business before it, provided the number of members present be not less than the minimum prescribed by law; - the above being the greatest number [when the court is composed of less than thirteen members] that can be convened without manifest injury to the service.

By command of Major-General S.,
S. C., Adjutant-General.

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    838. Form of the proceedings of a general court martial.

    Proceedings of a General Court martial) convened at ______, by virtue of the following order, viz. :

(Here insert the order.)

________ o'clock, A. M. Jan. 15th, 18___.

    The court met pursuant to the above order. Present:

        Colonel A. B. ..............................................................................................1st Regiment of Infantry.

        Colonel C. D ...............................................................................................2d " "Cavalry.

        Major E. F ...................................................................................................3d " " Artillery.

        Major G. H ..................................................................................................5th" " Infantry.

        Captain L. M................................................................................................1st " " Dragoons.

        Etc., etc ........................................................................................................_______________

        Etc., etc . ......................................................................................................________________

    Captain P. S.) of the 2d regiment of artillery, judge advocate.

    Captain T. VV., 8th regiment of infantry, the accused, also present.

    The judge advocate having read the order convening the court, asked Captain T. W. if he had any objection to any member named therein, to which he replied,-______

    (If any challenge is made) it must be now) and to one member at a time.)

    The court was then duly sworn by the judge advocate, and the judge advocate was duly sworn by the presiding officer of the court, in the presence of' the accused.

    (It is at this stage of the proceedings that the accused makes his request for the privilege of introducing his counsel, and will also, if he desires it, state his reasons for postponement of the trial. These matters being settled, the court proceeds.)

    The charges were read aloud by the judge advocate. Judge advocate (addressing the accused), "Captain T. W., you have heard the charge, or charges, preferred against you; how say you-guilty or not guilty?"

To which the accused) Captain T. IV., pleaded as follows: - (The judge advocate here gives notice, that should there be any persons present in court, who have been summoned as witnesses) they must retire and wait until called for.)

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    Captain D. N., 2d regiment of artillery, a witness on the part of the prosecution, was duly sworn.

    Question by the judge advocate. ___________________?

                                        Answer. ____________________.

                                        Question. ___________________?

                                        Answer. ____________________.

    Cross-examined by the accused. ___________________?

                                        Answer. ____________________.

                                        Question. ___________________?

                                        Answer. ____________________. 

    Question by the court.                ____________________?

                                        Answer. ____________________.

                                        Question. ___________________?

                                        Answer. ____________________.

    Re-examined by the judge advocate. ________________?

                                        Answer. ____________________.

                                        Question. ___________________?

                                        Answer. ____________________.

    (The examination of the witness being completed, his testimony is read over to him, and corrected if necessary-when the next witness is called. The judge advocate having presented all the evidence for the prosecution, states such fact, and announces that the prosecution is closed - when the accused enters upon the defence.)

    Lieutenant A. B., 3d Regiment of Infantry, a witness for the defence, was duly sworn.

    Question by the accused.           ____________________?

                                        Answer. ____________________.

                                        Question. ___________________?

                                        Answer. ____________________.


    Question by judge advocate.     ____________________?

                                        Answer. ____________________.

                                        Question. ___________________?

                                        Answer. ____________________.

    Question by the court.               ____________________?

                                        Answer. ____________________.

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    (The evidence on both sides having been heard, the accused asks for time to prepare his defence.)

    The court adjourned to meet again at 10 o'clock, A. M., on the ____- inst.

10 o'clock, A. M., _____ 18_____.

    The court met pursuant to adjournment. Present, Colonel A. B.; Colonel C. D.; Major E. F.; Major G. H.; Captain J. M., etc., etc

    Captain P. G., judge advocate, and Captain T. W., the accused.

    The proceedings of yesterday were read over, when the accused, Captain T. W., presented and read (or which was read by his counsel) the written defence (A.) appended to these proceedings.

    (Should the judge advocate intend to reply, he would notify the court, and ask for the requisite time for preparation.)

    The statements of the parties being thus in possession of the court, the court was cleared for deliberation; and having maturely considered the evidence adduced, find Captain T. W., of the 8th Regiment of Infantry, as follows:

    Of the first specification of 1st charge, ___________________________, Guilty.

    Of the second specification of 1st charge,_________________________ , Not guilty.

    Of the third specification of 1st charge,___________________________, Guilty.

    Of the FIRST CHARGE,                       __________________________, Guilty.

    Of the first specification of 2d charge,____________________________, Not guilty.

    Of the second specification of 2d charge, _________________________, Not guilty.

    Of the SECOND CHARGE, __________________________________, Not guilty.

    And the court do therefore sentence the said Captain T. W. of the 8th Regiment of Infantry, __________ to __________.

(Signed)                                                                         A.B.,
    Colonel 1st Regiment of Infantry, and President of the C. M.

(Signed)                                                                        P. S.,
                                                                                Judge advocate.

    There being no farther business before them, the court adjourned sine die.

(Signed)                                                                      A. B.,
    Colonel 1st Regiment of Infantry, and President of the C. M

(Signed)                                                                        P. S.,
                                                                                Judge advocate.

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