Part 49 (1/2)

The circuit court has jurisdiction of a homicide committed by one soldier upon another within a military reservation of the United States.

If a homicide be committed by a military guard without malice and in the performance of his supposed duty as a soldier, such homicide is excusable, unless it was manifestly beyond the scope of his authority or was such that a man of ordinary sense and understanding would know that it was illegal.

It seems that the sergeant of the guard has a right to shoot a military convict if there be no other possible means of preventing his escape.

The common-law distinction between felonies and misdemeanors has no application to military offenses.

While the finding of a court of inquiry acquitting the prisoner of all blame is not a legal bar to a prosecution, it is ent.i.tled to weight as an expression of the views of the military court of the necessity of using a musket to prevent the escape of the deceased.

By order of the Secretary of War: R. C. DRUM, _Adjutant_General._

The following is taken from Circular No. 3, of 1883, from Headquarters Department of the Columbia:

VANCOUVER BARRACKS, W. T., _April_20,_1883_.

To the a.s.sISTANT ADJUTANT GENERAL, _Department_of_the_Columbia._

SIR:

A sentinel is placed as guard over prisoners to prevent their escape, and, for this purpose, he is furnished a musket, with ammunition. To prevent escape is his first and most important duty.

I suppose the law to be this: That a sentinel shall not use more force or violence to prevent the escape of a prisoner than is necessary to effect that object, but if the prisoner, after being ordered to halt, continues his flight the sentinel may maim or even kill him, and it is his duty to do so.

A sentinel who allows a prisoner to escape without firing upon him, and firing to hit him, is, in my judgment, guilty of a most serious military offense, for which he should and would be severely punished by a general court-martial.

(Signed) HENRY A. MORROW, _Colonel_Twenty-first_Infantry,_Commanding_Post._

[Third indors.e.m.e.nt.]

OFFICE JUDGE ADVOCATE, MILITARY DIVISION OF THE PACIFIC, _May_11,_1883._

Respectfully returned to the a.s.sistant adjutant general, Military Division of the Pacific, concurring fully in the views expressed by Col. Morrow. I was not aware that such a view had ever been questioned. That the period is a time of peace does not affect the authority and duty of the sentinel or guard to fire upon the escaping prisoner, if this escape can not otherwise be prevented.

He should, of course, attempt to stop the prisoner before firing by ordering him to halt, and will properly warn him by the words ”Halt, or I fire,” or words to such effect.

W. WINTHROP, _Judge_Advocate_.

[Fourth indors.e.m.e.nt.]

HEADQUARTERS MILITARY DIVISION OF THE PACIFIC, _May_11,_1883._

Respectfully returned to the commanding general, Department of the Columbia, approving the opinion of the commanding officer, Twenty-first Infantry, and of the judge advocate of the division, in respect to the duty of and method to be adopted by sentinels in preventing prisoners from escaping.

By command of Maj. Gen. Schofield: J. C. KELTON, _a.s.sistant_Adjutant_General._

See also Circular No. 53, A. G. O., December 22, 1900.