Coffin v. Wilbur

By St. 1809, c. 108, § 31, it is enacted, that a court-martial shall sentence the accused, if he is found guilty, either to be reprimanded in orders, or to be removed from office ; and if any officer is sentenced to be removed, the court shall adjudge him to be incapable of holding any military office under this Commonwealth, either for life or term of years. By St. 1821, c. 92, § 9, power is given to a division court-martial, “ to inflict such fine on any officer, by said court convicted, as under the circumstances of the case, to said court shall seem reasonable, not exceeding the sum of two- hundred dollars.” The defendant was sentenced to removal from office, and adjudged to be disqualified for holding a military commission for five years, and also sentenced to pay a fine of 100 dollars. It was now objected that the court-martial could inflict only one or the other punishment, but not both. Commonwealth v. Derby, 13 Mass. R. 433 ; Commonwealth v. Martin, 17 Mass. R. 362 ; Jones v. Estis, 2 Johns. R. 379s. But it was held, that the provision in the last statute is cumulative.

Another objection was, that the sentence was not duly approved by the major-general, the only evidence of his approval being the certificate of one of his aids-de-camp. St. 1809, c. 108, § 31, 33 ; Mills v. Martin, 19 Johns. R. 30. The Court were inclined to the opinion, that the proceedings of the court-martial ought to have been revised by the major-general and his approbation of the sentence to have been certified under his own signature ; but as it appeared upon inquiry at the office of the adjutant-general, that the practice had not been uniform, and as the present case might be determined upon other grounds, this point was left open.

It was likewise objected, that the members of the court-martial were not duly sworn. They were sworn on one day for the trial of one Sampson and of such others as might be 1 rought before them ; and having tried that case, they proceeded ‘he next day, without being re-swom, to the trial of the defendant’s case, which was upon a different complaint. The f°rm of the oath, in St. 1809, c. 108, § 31, [Revised 8tat. c. 12, § 118,] is, — u You, A. B. do swear, that &c you will well and truly try the cause now before you, between this Commonwealth and the person (or persons, if more than one is accused in the same complaint) to be tried ; ” &c. The Court said it was apparent from the form of the oath, that the members of the court-martial should be sworn for each trial; that for every new complaint, they were to be considered as a new court and must be newly organized.¹

A further objection was made, that a question of law being submitted to the court-martial, the judge-advocate did not give a written opinion upon it, as required by St. 1809, c. 108, § 33, hut delivered a private oral and inofficial opinion to that court, after the room was cleared for deliberation ; and the defendant now contended that it should appear explicitly, on the face of the record, that the opinion given was in writing. Rex v. Croke, Cowp. 26. This Court remarked, that it was intended by the statute that every thing done before a court-martial should appear distinctly, so that it might be revised by a different tribunal. The opinion of the judge-advocate ought to be in writing, in order that the court-martial may take it with them when they retire for deliberation, so that there may be no question with them what the opinion was. This is necesbary likewise in reference to the revision by the major-general, and also that every citizen interested may know what has been decided. It may be said that the major-general will see the opinion in the record ; but it may be necessary to guard against misrepresentation in the record by the judge-advocate. No unfairness appears in the present case ; but we are looking to the reasons of the provision in question.

Mew trial granted.

1 A court-martial is a court of limited and special jurisdiction, and the law will intend nothing in its favor. Brooks v. Adams, 11 Pick. 442) Brooks v Davis, 17 Pick. 148.