him of his liberty, the authority for such action may be inquired into by a writ of habeas corpus. To enable the officer to make a full return in case a writ of habeas corpus is served upon him the warrant of attachment will be accompanied by a copy of the charges in the case, including the order referring the charges for trial and copies of the orders appointing the court-martial, each sworn by the trial judge advocate to be a full and true copy of the original; the original subpoena, showing proof of service of a copy of same; and an affidavit of the trial judge advocate that the person being attached is a material witness in the case, that such person has failed and neglected to appear although sufficient time has elapsed for that purpose, and that no valid excuse has been offered for such failure to appear.

In executing such process it is lawful to use only such force as may be necessary to bring the witness before the court. Whenever the use of force is likely to be required or whenever travel or other orders are necessary, appropriate application to the proper commander for assistance or for orders will be made by the officer who is to execute the process.

For matters relating to habeas corpus proceedings in connection with attachments, see 184-189.

c. Military witnesses. The attendance of persons in the military service stationed at the place of meeting of the court, or so near that no expense of transportation will be involved, will ordinarily be obtained by informal notice served by the trial judge advocate on the person concerned that his attendance as a witness is desired. In order to assure the attendance of such person the proper commanding officer should be informally advised so that he can arrange for the timely presence of the witness. If for any reason formal notice is required, the trial judge advocate will request the proper commanding officer to order the witness to attend; but if expense of transportation is involved, the proper superior will be requested to issue the necessary order. The attendance of persons on the retired list, not assigned to active duty, should be obtained in the same manner as in cases of civilian witnesses not in Government employ. No travel order will be issued in such cases. If practicable, request for the attendance of military witnesses will be so made that the witness will have notice at least 24

hours before starting to attend the meeting of the court.

When documents which are to be introduced in evidence are in the custody and control of military authorities, the trial judge advocate, the court, or the appointing authority will, upon proper request, take necessary action to effect the production of such documents without the necessity of further legal process.

106. PREPARATION OF INTERROGATORIES AND TAKING OF DEPOSITIONS—a. Preliminary, general, and miscellaneous. For statutory provisions, see Articles 25 and 26. For the use of a deposition in evidence, see 131a. Concerning the use of depositions in summary courts-martial, see 82b (2). With reference to the taking of pretrial depositions, see 30e, 35a and the third proviso of Article 25. For the form of a deposition, see Appendix 14.

At any time after charges have been signed as provided in Article 46 and before the charges have been referred for trial, any authority competent to appoint a court-martial for the trial of such charges may designate officers to represent the prosecution and the defense and authorize such officers, upon due notice, to take the deposition of any witness. The deposition may subsequently be received in evidence as in other cases. See Article 25. Ordinarily, the authority competent to appoint a general courtmartial will designate the officers, preferably the trial judge advocate and defense counsel of an existing court or their assistants, to take the depositions.

A deposition may be taken in a foreign country by any officer, civil or military, authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths. See 133a as to judicial notice of the seals of foreign notaries public with respect to the authentication of depositions taken before foreign notaries.

If the name of the person whose deposition is desired is unknown, he may be identified in the interrogatories and any accompanying papers by his office or position, for example, "Commanding Officer, Company C, 27th Infantry"; "Cashier, Commercial National Bank, Fort Leavenworth, Kansas."

In this paragraph (106), unless the context otherwise indicates, the term "trial judge advocate" includes a summary court-martial.

In

b. Preparation of interrogatories. The party desiring a deposition ordinarily submits to the opposite party the interrogatories he wishes the witness to answer; but he may submit them to the court, and the court, when it desires the deposition of a witness, may direct the trial judge advocate to submit appropriate interrogatories to the court. any case all parties in interest will be given full opportunity to submit crossinterrogatories and additional interrogatories, direct and cross, as desired. When the defense in a capital case submits interrogatories, cross-interrogatories may be submitted to the same extent as in a case not capital.

If the interrogatories and cross-interrogatories are submitted to the court, objections on any ground known at the time may be made and passed upon at that time. But see 131a as to objections at the trial. A wider latitude than usual should be allowed as to leading questions.

c. Sending out interrogatories. All interrogatories are entered upon the prescribed form as indicated by the notes and instructions thereon. According to circumstances, and having regard to economy, promptness, and the proper taking of the deposition, the trial judge advocate may send the interrogatories to the commanding officer of the military station nearest the witness; to a responsible person, preferably one competent to administer oaths; to the commander of an Army, department, or other comparable command; to the witness himself; or to The Adjutant General. According to circumstances the interrogatories will be accompanied by such of the following as are advisable or necessary: a proper explanatory letter, an addressed return penalty envelope, subpoenas in duplicate, voucher for fees and mileage.

The return penalty envelope should be addressed to the trial judge advocate of the court and not to the officer by name. The subpoenas will, and the voucher will not, be signed; but both subpoenas and voucher will be completed to the extent permitted by the known facts, and the latter will be accompanied by the required number of copies of the orders appointing the court.

d. Action by officer receiving interrogatories. When interrogatories are received by a military officer, he will take appropriate action with a view to the prompt and economical taking of the

deposition by a competent person, the sending of the deposition to the trial judge advocate (addressed by office, not by name), and the payment of the necessary fees. Subject to limitations on his authority, he may, for example, send a suitable person to the residence of the witness; or arrange by mail or otherwise for the taking of the depositions; or, in the case of a civilian witness, subpoena him or arrange for his attendance without subpoena.

In the event that the deposition can not be taken promptly upon receipt of the interrogatories, the officer receiving the interrogatories will take immediate steps to advise the officer who requested the deposition of the delay and of the approximate date that the deposition will be taken. In all cases the taking of the deposition will be expedited.

e. Suggestions for person taking deposition. Before a witness gives his answers to the interrogatories they should be read and, if necessary, explained to him, or he should be permitted to read them over in order that his answers may be clear, full, and to the point. The person taking the deposition should not advise the witness how he should answer, but he should endeavor to see that the witness understands the questions and what is desired to be brought out by them and that his answers are clear, full, and to the point.

The person taking the deposition shall administer the oath to the witness, and interpreter, if any (see 47 and A. W. 19), and in the presence of the witness shall record or cause to be recorded the testimony of the witness. Objections made at the time of the examination shall be noted upon the deposition. Evidence objected to shall be taken and recorded subject to the objections.

When the testimony is fully transcribed the deposition will ordinarily be submitted to the witness for examination or read to him. Any changes in form or substance which the witness desires to make shall be entered by the person taking the deposition. The deposition will then be signed by the witness, unless the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the person taking the deposition will state the reason for the omission of the signature over his own signature. The certiflcate of the person taking the deposition will then be executed. See Appendix 14.

If a military officer takes a deposition, he will ordinarily complete and certify the voucher. When a deposition is taken by a civil officer, he should, if so requested, obtain and furnish with the return of the deposition the data necessary for the completion of the witness voucher.

f. Action on receipt of deposition. Upon receipt of the deposition the trial judge advocate will advise the accused or his counsel of that fact and will give them an opportunity to examine the deposition before the trial.

g. Depositions on oral interrogatories. Depositions may be taken on oral interrogatories by consent of the parties or by direction of the court or the appointing authority. After reasonable notice to the parties that a deposition is desired the court or appointing authority may direct the trial judge advocate and defense counsel, or an assistant trial judge advocate and assistant defense counsel, if any, to proceed to the residence of the witness, or other designated place, for the purpose of taking the deposition of the witness upon oral examination. In the event the above procedure is not followed, each party, instead of writing out the questions to be asked the witness, as contemplated in b above, will indicate in a separate letter or memorandum the nature of the charges and the points desired to be covered in the oral examination of the witness. Whenever practicable the commanding officer to whom the papers are sent, as contemplated in c above, will, in addition to designating the person authorized by law to administer oaths to take the deposition, detail officers, preferably officers experienced in the duties of trial judge advocate and defense counsel, respectively, to represent both sides in propounding the questions. The rules as to representation by legally qualified counsel (45) are applicable. See 131a as to objections.

107. EMPLOYMENT OF EXPERTS. When the employment of an expert is necessary during a trial by court-martial, the trial judge advocate, in advance of the employment, will, on the order or permission of the court, request the appointing authority to authorize such employment and to fix the limit of compensation to be paid the expert.

The re

quest should, if practicable, state the compensation that is recommended by the prosecution and the defense. Where in advance of trial the prosecution or the defense knows that the employment of an expert will be necessary, application should be made to the appointing authority for authority to employ the expert, stating the necessity therefor and the probable cost. In the absence of previous authorization as stated no fees, other than ordinary witness fees, may be paid for the employment of an individual as an expert witness.

108. EXPENSES OF COURTS-MARTIAL. See AR 35-4120.

109. CONTEMPTS. See Article 32. The power to punish for contempt is vested in general, special and summary courts-martial.

The conduct described in Article 32 constitutes a direct contempt. Indirect or constructive contempts-those not committed in the presence or immediate proximity of the court while it is in session-and the conduct and acts described or referred to in Article 23 (refusal to appear, or to qualify or testify as a witness, having been duly subpoenaed) are not punishable under Article 32, but may be punished under other provisions of law, such as Article 23, in the case of persons not subject to military law, and Article 96, in the case of persons subject to military law.

The words "any person", as used in Article 32, include all persons, whether or not otherwise subject to military law. They do not include members of the court itself, although such members may be punishable as indicated in 38a,

When a contempt punishable under Article 32 has been committed, the court may, after giving the party an opportunity to be heard, impose a punishment within the limits prescribed by Article 32. A record is made in and as a part of the regular record of the case before the court showing the facts as to the contempt and the proceedings with reference to it. Sentences adjudged for contempt require the approval of the reviewing authority in order to be effective.

The court, instead of proceeding as stated above, may cause the removal of the offender and in a proper case initiate his prosecution before a civil or military court.

110. GENERAL CONSIDERATIONa. Insanity. A person is insane within the meaning of this chapter either if he lacked mental responsibility at the time of the offense as defined in 110b, or if he lacks the requisite mental capacity at the time of trial as stated in 110c.

b. Lack of mental responsibility. If a reasonable doubt exists as to the mental responsibility of the accused for an offense charged, the accused can not legally be convicted of that offense. A person is not mentally responsible in a criminal sense for an offense unless he was, at the time, so far free from mental defect, disease, or derangement as to be able concerning the particular act charged both to distinguish right from wrong and to adhere to the right. The phrase "mental defect, disease, or derangement" comprehends those irrational states of mind which are the result of deterioration, destruction, or malfunction of the mental, as distinguished from moral, faculties. Thus a mere defect of character, will power, or behavior, as manifested by one or more offenses or otherwise does not necessarily indicate insanity, even though it may demonstrate a diminution or impairment in ability to adhere to the right in respect to the act charged. See 78a, 112.

c. Mental capacity at time of trial. No person should be brought to trial unless he possesses sufficient mental capacity to understand the nature of the proceedings against him and intelligently to conduct or cooperate in his defense.

111. INQUIRY BEFORE TRIAL. If it appears to any commanding officer who considers the disposition of charges as indicated in 30, or to any investigating officer (35a), trial judge advocate or defense counsel, that there is reason to believe that the accused is insane (110c) or was insane at the time of the alleged offense (110b), that fact and the basis of the observation should be reported through appropriate channels in order that an inquiry into the mental condition of the accused may be conducted before charges are referred for trial. When the report indicates substantial basis for the belief, the matter will be

referred to a board of one or more medical officers for their observation and report with respect to the sanity of the accused. At least one member of the board should be a psychiatrist. The board should be fully informed of the reasons for doubting the sanity of the accused, and in addition to other requirements, should be required to make separate and distinct findings as to each of the three following questions:

a. Was the accused at the time of the alleged offense so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged to distinguish right from wrong? (110b.)

b. Was the accused at the time of the alleged offense so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged to adhere to the right? (110b.)

c. Does the accused possess sufficient mental capacity to understand the nature of the proceedings against him and intelligently to conduct or cooperate in his defense? (110c.)

To determine these questions the board should place the accused under observation, examine him and conduct such further investigation as it deems necessary. On the basis of this report, further action in the case may be suspended or the charges may be dismissed by an officer competent to appoint a court-martial appropriate to try the offense charged, proceedings may be taken to discharge the accused from the service on the grounds of his mental disability, or the charges may be referred for trial. Such additional mental examination may be directed as circumstances may require. The officer directing or requesting the mental examination of the accused will attach the report of examination to the charges if referred for trial or forwarded.

112. INQUIRY BY COURT-a. Presumption of sanity; reasonable doubt; burden of proof. The accused is presumed initially to be sane and to have been sane at the time of the alleged offense. This presumption merely supplies the required proof of mental capacity and responsibility and authorizes the court to assume that accused is sane until evidence is presented to the contrary. When, however, evidence tending to prove that the accused is insane (110c) or was insane at the time of his alleged offense (110b) is introduced either by the prosecution or by the defense or on behalf of

the court, then the sanity of the accused is an essential issue. If, in the light of all evidence, including that supplied by the presumption of sanity, a reasonable doubt as to the mental responsibility of the accused at the time of the offense (110b) remains, the court must find the accused not guilty of that offense. If a reasonable doubt as to the mental capacity of the accused at time of trial (110c) remains, the court will adjourn and transmit to the appointing authority the record of its proceedings as far as had with a statement of its determination of the issue of mental capacity. Although the issue of insanity is usually raised by the defense by producing evidence of mental irresponsibility or lack of capacity, it is the duty of the court to call for evidence on this matter whenever there is reasonable indication that such inquiry is warranted in the interest of justice. The burden of proving the sanity of the accused, like every other fact necessary to establish the offense alleged, is always on the prosecution, but it is not incumbent upon the prosecution to introduce any evidence tending to prove the sanity of the accused until the question of sanity becomes an issue in the case.

b. Procedure. The issue of insanity may be raised at any time while a case is before the court. The actions and demeanor of the accused as observed by the court or the bare assertion from a reliable source that the accused is believed to lack mental capacity or is mentally irresponsible may be sufficient to warrant inquiry. It should be remembered, however, that although a person who lacks mental capacity or responsibility to the extent indicated in 110 should not be tried, sanity is presumed (112a) and a mere assertion that a person is insane is not necessarily sufficient to impose any burden of inquiry on the court, or to raise the issue of insanity.

A request, suggestion, or motion that inquiry be had may be made by any member of the court, prosecution, or defense. The law member may rule, subject to objection by any member of the court and final determination by the court, as to whether an inquiry should be made (A. W. 31). If it is determined to make such an inquiry, priority will be given to it, and the inquiry should exhaust all reasonably available sources of information with respect to the mental condition of the accused. If it appears

that the inquiry will be protracted, or if the court desires to hear expert testimony, the court may adjourn and report the matter to the appointing authority with its recommendation in the premises. Such recommendation may include in a proper case a recommendation that the accused be examined as provided in 111, and that the officer or officers conducting the examination be made available as witnesses. In his discretion the appointing authority may withdraw the charges from the court as a result of a report of examination conducted under 111; or he may transmit the report to the court for its consideration subject to the provisions of 112c.

If the court finds the accused not mentally responsible for his acts (110b) it will forthwith enter findings of not guilty as to the proper charges and specifications. If it finds the accused mentally responsible for his acts, but at the time of trial lacking requisite mental capacity (110c), it will record such findings. In either case the proceedings so far as had will be forwarded to the appointing authority. If the accused is found to be sane the trial proceeds.

If the issue of insanity is raised as an interlocutory question and the court finds the accused sane the defense is not precluded by this finding from offering further evidence on the issue of insanity and, when all the evidence in the case has been received, the court may proceed to its findings on the guilt or innocence of the accused. If in consideration of its findings upon the general issue the court entertains a reasonable doubt that the accused was mentally responsible for his acts it will enter findings of not guilty as to the proper charges and specifications (110b).

If the appointing authority disagrees with the court in its finding that the accused lacks requisite mental capacity at the time of trial (110c), or where the reviewing authority determines that the disability was temporary and that the accused has recovered his mental capacity, he may return the case to the court with instructions to reconsider its findings and, if appropriate, to proceed with the trial.

c. Evidence. The issue of the sanity of the accused is one of fact, and the modes of proof and rules of evidence with respect to this issue are, generally, those prescribed in Chapter XXVIII. Although the testimony of an expert on mental dis