a spy, or for a violation of the laws of war, or other party military or civil. Unauthorized release. The fact of the omission to present any charge upon the commitment of the prisoner would not per se authorize his release. Nor would the fact that the offence charged is a trivial one, or that the accused is innocent of the charge, or that the commitment is illegal, have such effect; these being circumstances to be considered and acted upon by superior authority.2 The "proper authority" specified in the Article is of course the chief of the command by the guard of which the prisoner is held, (and to whom the report required by the previous article has been made,) or, in the case of a special personal trust, the authority imposing the same, or the military superior to whom the case may have been formally submitted for official action or under whose control it may otherwise have come. 3 Suffering an escape. This was an offence punishable at common law about which much learning is to be found in the reports and treatises. Two degrees or kinds of the offence were recognized-voluntary escape and negligent escape; the term "escape" being used in criminal law to express the suffering of an escape on the part of the keeper more commonly than the act of the prisoner in getting away, which is technically known as "prison-breach" or "breach of prison." Voluntary escape is defined to be-" where the sheriff intentionally or knowingly permits the prisoner to go at large;" negligent escape—“where the prisoner breaks out of prison and is at large, without the consent, but through the negligence, express or implied, of the sheriff." The former offence was viewed as a graver one than transport, who was convicted of suffering the escape of three confederate prisoners of war, (commissioned officers,) in his charge. G. O. 8, Div. West Miss., 1865. 1. Hough, 480; Id., (P.) 23. 2. Hough, 480. 3. Id. And see Simmons § 361. 4. See Steere v. Field, 2 Mason, 486, and cases cited; 2 Bishop, C. L. § 1092-1106; 1 Hale, P. C., 590-605; 2 Hawkins, c. 19; 1 Gabbett, C. 20. 5. 1 Russell, 418; 2 Bishop, C. L. § 1095. 6. Adams v. Turrentine, 8 Ire. 147. the latter; its degree in law being held to be the same as that of the original crime of the prisoner whose escape had been permitted; so that, if the prisoner were confined for felony, the voluntary suffering of the escape on the part of the keeper would be indictable as felony. A "negligent" escape did not rise above the degree of misdemeanor.2 It is quite clear, under the general language of the present Article, (and has been thus held by Hough,3) that the offence made punishable therein may consist either in a voluntary act or an act of negligence; and it is manifest that the former would properly call for a more severe punishment than the latter.* So, such of the principles of the law relating to the criminal apposite to military cases may well be here applied. For example, at common law, the fact that the prisoner returned of his own accord did not, per se, excuse a negligent escape, (i. e. suffering of an escape,) once consummated. Nor did the fact of a recapture of the prisoner have such effect, unless he were offence as are 1.1 Russell, 418; 4 Black. Com., 130; 2 Wharton, C. L. § 1667; 2 Bishop, C. L. § 1095, 1099; Weaver v. Com., 29 Pa. St. 445. 2. Dalton, c. 159; 2 Wharton, C. L. § 1667. J 3. This author, (p. 484,) referring to the corresponding British article, observes that the offence is committed not only where the officer allows the prisoner to escape, (intending it to take place,) either by preconcert or by giving the opportunity with a criminal intention, but also and equally where, by want of precaution, or the neglect of duty, or disobedience of orders' issued relative to the security of prisoners, the escape takes place.' is much more Blackstone observes that negligence or connivance, whose escape is effected. 4. 4 Black. Com., 130; Hough, 481, 485. an "officer permitting an escape, either by Hough, 487, cites an exceptionally severe and ignominious sentence culpable than the prisoner" adjudged in India in 1819, and confirmed, in a case of a native officer, convicted of gross negligence in suffering the escape of an important prisoner, under circumstances indicating also connivance,) as follows:To be dismissed the service, to have his sash burnt, and his sword broke over his head, in front of the troops at the station; after which to have a halter tied round his neck, and to be drummed out of can tonments." 5. Bank of U. S. v. Tyler, 4 Peters, 389; Briggs v. Cramer, 2 South. 498; Nall v. State, 34 Ala. 262. So, in G. C. M. O. 25, Dept. of Cal., 1883, Gen. Schofield, in approving a conviction of a violation of Art. 62 in allowing a convict prisoner to escape, remarks :-" Neither the re capture of an escaped prisoner, unless the same be immediate, nor the subsequent voluntary return of the prisoner himself, can excuse an escape suffered through a neglect of duty on the part of the keeper." 6. Bank of U. S. immediately pursued and retaken before being lost sight of." The death of an escaped prisoner before recapture did not "purge" the escape. The rule, however, as to what acts will constitute negligence is not so strict at the military as at the common law. Thus, where a prisoner has succeeded in effecting his escape through the insecurity or inadequacy of the guardhouse or prison, which it was the business of superior authority to have made secure or sufficient, the officer in charge cannot in general properly be held responsible under this Article. Otherwise, however, where the escape is effected by reason of a neglect on his part to take precautions within his power and duty. As where he neglected to cause the prisoner to be properly restrained or guarded; or where he failed to have him searched when there was reasonable ground to believe that he might have, and he had in fact, an implement suitable for securing his escape concealed upon his person; or where he permitted the prisoner to have private interviews with improper persons by whose aid the escape was facilitated. 5 As to the proof of the offence, it is further held at the common law-and the same principles are applicable here-that, while it should appear that the arrest and commitment were legal, it need not be shown that the prisoner was actually guilty of the offence for which he was arrested, or that the officer had knowledge of his guilt. The latter, at military law, is absolutely re I. I Russell, 419; 2 Bishop, C. L. § 1095; Whitehead . Keyes, 1 Allen, 350. 2. Whicker v. Roberts, 10 Ire. 485. 3. The common law rule was that nothing short of an act of God, or of the public enemy, or of irresistible adverse force, (as in case of rescue,) would excuse a negligent escape. (2 Wharton, C. L. § 1668.) It may be added that the strict common law rule that "every liberty given to a prisoner not authorized by law" is a voluntary escape, (Steere v. Field, ante,) is not applicable to military cases. Such a liberty, if the prisoner was thereby enabled to get away, would be evidence of the voluntary or the negligent act, according to circumstances. 4. See Hough, 480. 5. Id., 479. 6. 1 Russell, 417; 2 Wharton, C. L. § 1667; 2 Bishop, C. L. § 1094. 7. 2 Hawkins, c. 28, s. 16; 2 Wharton, C. L. § 1668, note: Nor, as remarked under the head of unauthorized release, is it material whether the offence with which the prisoner was charged was a grave one or the reverse. This point, however, may be considered in awarding punishment. 8. Weaver v. Com., 29 Pa. St. 445. Nor can the officer show, by quired to hold the prisoner duly entrusted to his charge, without any regard whatever to the question of his guilt or innocencean issue which cannot be, directly or indirectly, taken cognizance of in this proceeding. It is further held by the authorities that the mere fact of escape, appearing without other circumstances, raises a presumption of at least negligence on the part of the keeper, and that the onus of rebutting this presumption then rests upon him;1 and a similar rule may in general be applied to a case of escape suffered by a military officer.2 While the offences of voluntary and negligent escape are distinct, it is yet held that gross negligence may be given in evidence to show a voluntary escape;3 and further that, under an indictment for a voluntary escape, the defendant may be convicted of a negligent escape, the former offence properly including the latter. So, at military law, where the specification, under a charge of a violation of the present Article, sets forth an escape in its nature voluntary, the charge will be sustained by proof of acts of negligence only, and the accused may be con-. victed of both charge and specification, the proper exceptions and substitutions being made in the finding upon the latter. The present Article applies only to officers. A non-commissioned officer, or soldier, (as a sentinel or guard,) permitting an escape, is of course liable, for his offence, to charges and trial under Art. 62. So also is the enlisted prisoner who effects his escape: if his design, however, is not merely to evade his confinement but to abandon the service, his offence is desertion. way of defence, that the prisoner was in fact innocent of the offence charged. Nor, in a case of an alleged suffering of an escape of a prisoner while under sentence, would it be admissible for him to show, in defence, that the sentence was illegal. 1. "An escape implies the negligence or connivance of the officer." I Gabbett, 298. And see 1 Hale, P. C., 601; 1 Russell, 419; 2 Wharton, C. L. § 1668; 2 Bishop, C. L. § 1096; Adams v. Turrentine, 8 Ire. 147; Blue v. Com., 4 Watts, 215. 2. See O'Brien, 156. 3. Smith v. Hart, 1 Brev. 146. 4 Skinner v. White, 9 N. H. 204; Fairchild v. Case, 24 Wend. 380; Nall v. State, 34 Ala. 262. CHAPTER X. THE CHARGE. The Arrest of the accused is usually accompanied or presently followed by the service upon him of the charge or charges upon which it is proposed that he be tried. Here then may properly be presented the general subject of the military Charge, as framed, preferred, completed and served; leaving the forms of specific charges to be indicated in the Appendix. The subject will be considered under the following heads:- III. Rules of military law in regard to the framing of the IV. The Preferring of Charges. V. The Referring of Charges for trial. VI. Amendment of Charges after reference for trial. VII. Additional Charges. VIII. The Service of Charges. I. NATURE, FORM, AND REQUISITES OF THE CHARGE IN GENERAL. Definition, and Formal Parts. The Charge, in the military practice, like the indictment of the criminal courts, is simply a description in writing of the alleged offence of the accused. In the great majority of cases it is the only formal written pleading upon a trial by court-martial. In our practice this pleading, to which as a whole the name of Charge is applied, is divided into two portions; the first in order being, in contradistinction to the other, technically called "charge," and the second being termed the "specification." The office of the charge, in this its relative sense, is to designate the specific military offence, made punishable by an Article of |