Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-07-24
MIGHT BE TRIED TWICE
Col Ainsworth May Be Court-Martialed
After His Civil Trial.

What Experts in Military Law say-A ver-
dict by q Civil Court Would
Not End the Case.
Secretary Lamont's recent order dissolv-
ing the court Of inquiry appointed to In
vestigate the Ford's Theater building cas-
ualty has given rise to all sorts of con-
ficting theories. The sole meaning of that
action, as stated in The Star at the time.
was to prevent any possible conflict in the
civil and military proceedings in this case
and to permit free and untrammeled action
by the civil authorities before the military
| authorities took official cognizance Of al
/ legged dereliction on the part of Col. Aims
worth, the only person subject to military
discipline who Is implicated.
Liable to Military Discipline.
While 1t is true that Col. Ainsworth oc-
cupies the anomalous position OF being the
only officer in the army not attached to any
corps and of holding an administrative Of
flee that can be filled by no one
else while he is in the army, It is
equally true that he is liable. like all other
officers of the army, to punishment for any
infraction of its rules or regulations. The
military investigation Of his responsibility
for the accident in the 10th street branch
of his office has not been abandoned by any
means. 1t has merely been postponed until
after the civil authorities shall have dis
posed or the matter 1t was deemed mex
the same time. and ND very ~ properly m * The eS mil
itary gave way to the civil jurisdiction.
Nothing was waived in this. as Col. AIMS
worth ) conduct will be subject to a mil
| itary investigation regardless of the action
of the civil courts. His acquittal In the
subsequent trial by court-martial for an in
fraction of military regulations. 1t Is pos
sible for him 70 escape punishment by the
the latter His conviction by the civil
courts would undoubtedly result In the loss
OF his army commission.
What Experts Say.
In order to get all possible light on this
| matter Star reporter interviewed Col
Leiber, acting judge advocate general Of
the army. and Capt. Lernly. judge advocate
general of the navy. and also consulted
'Winthrop's standard works on military
faT In resrd to the gn of former
trial and conviction in civil court of a
civil offense is not bar to a prosecution
before court-martial for military offense
involved In the same act, since the two
offenses are not the same but are distinct
in law. and the accused is amenable to
trial for both a previous conviction of eth
er not affecting the legality of bringing him
to trial for the other"
concurrent jurisdiction of crime commit
ted by a military person. the court which
is entitled to proceed, and although the
precedenceof the civil jurisdiction is favored
in the law. yet. If this jurisdiction does not
assert itself until the other has been duly
assumed in the case, its exercise may be
properly postponed until the other has
been exhausted. Upon the commission of
such crime the military authorities will
in general properly wait a reasonable time
for the civi1 authorities to take action; but
II, before the latter have initiated proceed
inSs. the party Is duly brought to trial by
court-martial for the military oIense in
and ordinarily will. properly decline to ac-
cede to an application for his surrender to
the civil jurisdiction until at least the mill
tary trial has been completed.
The court martial Is exclusively GRIM
inal court. Its function is the investigation
of an offense and the trial Of an offender
1t has no civil jurisdiction whatever. Its
judgment is a criminal sentence. not a
civil verdict. Its proper function is to award
guilt.
Amenab'e to Civil Law.
Officers and soldiers of the army do not
become relieved Of their civil obligations by
assuming the military character. but as
citizens or civilian Inhabitants of the coun-
try, remain liable liable equally with other
citizens to the jurisdiction Of the civil
courts for ofenses against the local laws.
bilities incurred toward individuals.
The principle that the amenabilty of a
military person to the civil jurisdiction
fected by the fact that he is amenable to
the military Jurisdiction for military Of
fense involved In the same act or even by
the fact that he has been tried and sem
fenced by eourt-fnartial therefor. Is. with
its converse. now we'll established in mill
tary proceedings.
Thus an officer or soldier may become
amenable to prosecution for a felonous
crime made punishable by statute of the
United States or for an embezzlement of
public money or to suit on his bond as a
disbursng officer
He may also be amenable to a state or
territory for a crime or offense made pun
iShable by its laws or to municipality
for violation of local ordinance or po-
lice regulation.
An officer or soldier may not only be sued
for debt, but is liable also In damages,
thority to the detriment of the latter. how
ever honest the motive of the act; the mat
ter of animus affecting. only the measure
of damages. He is similarly liable for the
execution of an Illegal order. and this al
though such order was received by him
from his proper superior and was executed
by him in good faith. If both superior and
inferior are subjected to suit by the injured
party, the former should be held to
ton Of darragee awarded against him
An action will not lie against an officer
Of the army on contract made by him
for the United states in an official capac-
ity. Nor can an officer be sued upon
contract of the government which 1t is
simply his part to execute.
The Civil Law Supreme.
The fifty-ninth article Of war provides
for the surrender to the civil authorities
of military persons charged with civil
offenses. 1t Is an established principle of
our public law that in time of peace and
on common ground the military authority
is subordinate to the civil, and 1t is fur
ther settled that military persons are
amenable in their civil capacity to the
civil jurisdiction for breaches Of the crmi-
nal law. In recognition of these princi-
pies and to facilitate the exercise Of these
functions the fifty-ninth article was en-
acted. Its general purpose is ito aid the
civil authorities in the adminiStra ton of
justice and to place it out of the power of
a criminal to escape the just civil penal
ties of his acts by entering the military
service or claiming it's protection while in
it."
Charged With Cruelty to Enlisted Men.
Capt. John o. Mackay Of the third cav
airy, Is being tried by court martial at