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3. Charges.] See forms Nos. 39 & 40. Chap. I. That A. B. did on- at- , knowingly make a false return to C. D. of the state of regt. troop, or company, or garrison (as may be) under his command; or, of the arms, ammn., clothing, or other stores thereunto belonging. The same being in breach of the Arts. of War.
4. Evidence.) Nos. 1 & 2 as at Chap. II1. sec. ii, art. 1. 3. Prove C. D. to be an officer authorized to call for such return. 4. Prove the return to be false as charged. 5. Prove that it was knowingly made. One witness would be sufficient to prove the transmission of the return, as well as that the return is false.
5. Punishment.] Shall be cashiered.
Penalty of not remitting a monthly Return to the Com. in chief. Art. 2.) The com. officer of every regt., corps, troop, or independent comp., dépôt, or garrison, shall, in the beginning of every month, transmit to the Com.-in-chief (5) of the forces, an exact return of the state of the regt. troop, corps, independent company, dépôt, or garrison, under his command, specifying the names of the officers not then residing at their posts, and the reason for and time of their absence. Whoever shall be convicted of having designedly or through neglect omitted the sending such returns, shall be punished according to the nature of his offence, by the judgment of a genl.-ct.-mar.
1. An exact Return, monthly, of the State of every Regt. Troop, Corps, independent Company, Dépôt, or Garrison, &c.] This art. should have taken precedence of the former, which punishes an officer for making a false return of that which is required to be made by the latter. The object of the art. is to require the sending of exact returns, and to punish those who designedly or through neglect omit to send them. The information which returns are required to contain, is prescribed by forms laid down for the purpose, and an exact return is required; therefore, if there be any omission, as to particulars, numbers, dates, &c. or deviation from the prescribed form, or in any other respect, the return would not be exact, or answer the purpose intended. They must not only show the absence of those not present, but the reason for, and time of their absence. The returns must likewise be sent on the precise day ordered, or a reason for the delay be assigned
2. Charges.] See form Nos. 39 & 40. Chap. I. That A. B. on , at , did designedly or through neglect (as the case may be) omit to transmit a monthly return to the C. D. (adj. gen, &c.) as required by the Arts. of War, &c. of the state of the regt, troop, &c. under his command ; or, did transmit, &c. a monthly return, &c. which is not exact, in as much as it is deficient, &c. in the following particulars (state the particulars, deficiency, &c.), the same being in breach of the Arts. of War.
(5) They are sent to the adj.gen., and also to maj.gen.'s and other officers comg. divisions of the army, &c.
3. Evidence.] Nos. 1 & 2 as at Chap. III. sec. ii. art. l. 3. Prove C. D. to be an officer authorized to call for such return, 4. Prove the return not to have been sent as required. 5. Prove that it was designedly or through neglect omitled to be sent, or prove the return sent, not to be an exact return (as the case may be). One witness would be sufficient to prove that the return was not sent as well as that it is not an exact return (if so).
4. Punishment.] By the judgment of a gen.ct.-mar. (See Punishments at the end of Chap. XXIV.)
Penalty of Desertion. Enlistment in other Regiments without a Dis
from the former Regiment. Art. 1.] (1) All officers, non-com. officers, and soldiers in the Co.'s service, who shall be convicted of having deserled the same, shall suffer death, or such other punishment as by a gen. ct.- mar. shall be awarded; and (2) no non-com. officer or soldier who shall desert the said Co.'s service, shall be exempt from such punishment by again (3) enlisting into our service, or the service of the said Co.; but
such non-com. officer or soldier shall, notwithstanding such subsequent enlistment, be reputed a deserter, and suffer accordingly. [A gen. regil. ct.-mar. in H. M.'s service may try the crime.] (See Warrant, sec. xiv, art. 14.)
1. Description of the Crime.] Desertion, generally speaking, may be said to be a wilful abandonment or departure by any officer, com. or in pay (4), non-com. offier, or soldier, duly enlisted or in pay (5), of or from his station, regt., corps, guard, post, detachment, or party, without leave ; and without the intention to return. It is the latter circumstance which constitutes the difference, and which is to be judged of by the particulars of every case falling directly under decision, between desertion and absence without leave. A rule could not well be laid down, which should describe with accuracy, either the length of the unlicensed absence, or the circumstances attending it, which would be conclusive of the offence. Absence, by itself, if continued so long as to exclude the reasonable idea of a meditated return, will, if unexplained, or unexplainable, amount to desertion. A num
ber (1) Sec. v, art. 1, for Bengal Native Troops. (2) Sec. v, art 2, for Bengal Native Troops. (3) See M. A., sec. v, 4 Geo. IV., cap. 81, which has the same words as this art. (4) Note 2, Chap. I.
(5) Note 3, Chap. I.
ber of circumstances, also, joined with the shortest possible absence, might be taken to be declarative of the crime, in its full extent ; such as, if the absentee should be found on board a ship in the capacity of a sailor, or as a passenger bound to a distant country; or in a coach, having engaged a carriage to a remote spot; or being discovered in a disguise, having entered into a contract incompatible with, or which would necessarily detach him from his duty or attendance as a soldier ; or letters or writing be found upon him, shewing a previous purpose to separate himself from his regt., or corps, &c.; or make any preparations, such as packing up his clothes and property, when he is not going on a march, or any duty, or on leave of absence, &c, requiring such preparation; or if he should enlist or offer to engage in a new service, or in any other regt., without being able to shew a regular discharge from his former corps (6). Any one of these circumstances, with the slightest (7) absence from the place in which the party ought to be, without having in his possession a discharge, or certificate of leave of absence, or furlough, would be primâ facie evidence of the crime. On the other hand, if he should not have stripped himself of his regimentals (8), or removed any great distance from his qrs., or have left any articles of value, easily removable, behind him ; or be discovered in the pursuit of some accidental temporary objects, though, perhaps, otherwise illicit ; a short absence coupled with any of these acts, or others of a similar nature, would not appear to indicate that he intended to sever himself from the service; and more especially if he had made any motion or shewn the least inclination to return (9).
It has been observed, that the animus revertendi, or the mind or intention to return, is the strong feature, or the line of demarcation, between the offence of desertion and absence without leave. And this mind or intention is in all cases to be ascertained from the acts and conduct of the party, and not from the accounts which the accused may choose to give; his motives being known only to himself (10).
2. Desertion in Time of War.] The crime of desertion in time of war, would appear at all times to deserve a sentence of death, for the govt. is deprived of the soldier's service at a time when it is most needed, and when it is most difficult to supply his place. When troops are serving abroad, where their service may be unexpectedly required, their desertion is of very serious importance. In India, in particular,
the (6) M. A., sec vi, 4 Geo. IV., cap. 81. If he had been discharged he would be able to procure another discharge certificate. (See case 26.)
(7) In the Madras army, “ should a soldier's absence exceed three days, he is to be considered to have deserted."-(Madras regns., 11th March, 1816, p. 143, para. 3.)
(8) N.C.O. and sepoys in the Bengal army are not allowed to take their regl, wats with them, when on leave of absence. M. C. 26th May, 1790.-(Henley's Bengal Mil. Regns., p. 237.)
(%) Samuel on M. A. and Arts, of War, p. 323.-(See case 24.) (10) Samuel on M, A. and Arts. of War, p. 324,-(See cases 1, 2, 3, 4, 22, 24, 25, 27, 28, 29.)
the great distance from England, and expense attending casualties, are of themselves circumstances of importance; but when European soldiers desert there, the consequences that may ensue, rise in importance, for if they are enabled to conceal their flight, they enter, perhaps, into the service of one of the native princes (and such a case has occurred), and thus give intelligence to our enemies (1l), or assistance to them in some shape or other. The deserting and going over to, and entering in the service of the enemy (12), as in case 1, or a rebel chieftain, as in case 3, are cases that deserve nothing short of death. The deserting in front of the enemy, with horse, arms, &c. as in case 2 ; or during an action, as in case 4 ; or when on service, as in case 5, are all of them cases which would also appear to deserve death. In case 2, the intention to desert to the enemy was not made out clearly, though the act of desertion in front of the enemy was proved. If a soldier quits his ranks during an action, or his corps when on service, it must either be with an intention of deserting, through cowardice, with the design of assisting the enemy, or from disaffection to the service; and, therefore, from which ever cause, the case deserves the severest penalty. Those who join the enemy, besides subtracting from their own force, add so many to the strength of the former, with the means of giving that information which may be of the first consequence to them. If desertion alone were in view, they would keep away
from the scene of action. Where a soldier deserts before or near the enemy, or on service, with his arms, &c. the criminal intention would seem clear. If going in the direction from the enemy, he would seek rather to disguise himself, than to shew his real character, by his dress and being armed. If going towards the enemy, he would naturally assume the appearance of a soldier, to prevent his being taken
for a spy
3. Deserting when Sentries, or on other Duty.] The desertion of a sentry is of more serious consequence than under
other circumstances. He is placed to guard a particular post, which, if deserted, is opened to the attack of the enemy, or the loss of that which he is placed to protect; and he is liable to suffer death for even quitting his post (13). The deserting from an escort in charge of a state prisoner, as in case 8, has been attended with very serious consequences, and properly punished with death. The carrying off money, &c. under their charge, as in cases 5 & 6, is the commission of two crimes, desertion and theft, and the latter itself, alone, entails a sentence of death. He who deserts from a guard, as in case 9, or when on any duty, is highly criminal, for his immediate services may be required as he is one of a party appointed to a particular duty. 4. Deserting when under Orders for Service. This offence should
rank (11) Art. 15, sec. xxii.
(12) After the battle of Laswanee, in 1803, Lord Lake hanged a deserter who had been made prisoner during the action, in which Scindiah was completely defeated.
(13) Sec. xi., art. 10.
rank next to desertion on service, for the example set by soldiers who commit this crime, may lead to others doing the like, and thus there can be no reliance placed as to the number of men available for cases of public emergency. - (See case 10.)
5. Deserting, having before deserted, &c.] The repetition of the act a few days after being pardoned for a similar crime, as in case 11, sbews that no confidence can be placed in the services of a soldier under such circumstances, and a severe punishment is usually awarded, more so than in the case of a first desertion unattended with other aggravating circumstances, and transportation to a place where the offence cannot easily be repeated, would be a means of checking the propensity (14).-(See also cases 12, 14, 15.)
6. Combination, and Oath of Secresy, to desert, and deserting.] A combination to desert is a crime likely to extend its baneful influence very extensively in a regt., and death would appear to be the proper punishment for the principals concerned in such a conspiracy, particularly where oaths of secrecy are administered to prevent detection (see case 13). With respect to those who are concerned in the same, or are accessaries, a severe punishment is denounced. By the 37th Geo. III. c. 123, it is enacted “that whoever shall administer, or cause to be administered, or shall be present at, and consenting to, the administering of, or shall take any oath or engagement, intended to bind any person in any mutinous or seditious purpose, or to belong to any seditious society or confederacy, or to obey any committee, or any person, not having legal authority for that purpose, or not to give evidence against any confederate or other person, or not to discover any unlawful combination, or any illegal act, or any illegal oath or engagement, shall be guilty of felony, and may be transported for seven years. Compulsion shall be no excuse, unless the party within four days after he has an opportunity, disclose the whole of the case to a justice of the peace, or if a seaman or soldier, to his comg. officer. An offence against this act, committed any where, may be tried in any county, unless it be committed in Scotland; it shall then be tried in the criminal cts. in that country. A person acquitted under either of these statutes (37 Geo. III. c. 73 (15), and 123) shall not be prosecuted again for the same fact for high treason; but these statutes shall not prevent any person, not already tried under these statutes, from being prosecuted for high treason, in the same manner as if they had not been passed” (16).
By sec. vi. of the above act it is provided, that if the offence be commited on the high seas, or out of the realm, it may be tried in any county in England. The words, on the high seas, or out of the realm, include
India, (14) It is usual in all cases of a second desertion to state the having before deserted, and to state the number of times of former desertions.-(See M. A., sec. vi., which contains the same words as the 4th art. of this sec.)
(15) See note 23, p. 71.