The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1903-07-09
circumstance" Hare.

The cases In this country have usually
nrissn I y the army e.. END been determined
Articles Of War TART. 5o) under The acts
of Congress, officers or soldiers charged
with, offences punishable BY the laws OF
war to be delivered over to the civil Il. e.
in distinction from military authorities;
and the courts proceed upon the principles
Rep. III The decisions therefore are n, pre-.
cedents applicable here.
FED if Rep. no Sas Soldier on Vi the G mitar y
reservation at Fort Wayne had been con-
victed by court martial and when brought
out Of the guard 1na, house pa with other prison.
and was In the act of escaping, when
Clark. who, was the, sergeant Of the
guard fire., and Ok Killed him. Clark was
fore the United states district Judge sit
ting as a committing 1magistrate. Judge
Brown, now OF the Supreme Court OF
and well-ccrsidered opinion, which has
ever. since been ,. quoted as authoritative:
In he na 1a Legal faSs Snee wns ls
the the Ten aw efs n ts
the common law principle that an officer
having custody OF prisoner charged with
felony may take his life II 1t becomes
absolutely necessary to do go to prevent
his ESCAPE and pointing out the peeua5
~ abolish the distinction between felonies
and misdemeanors, he continued II have
no doubt the same principle would apply
formed in compliance with his supported
duty as a soldier; and unless the act were
mar'festy beyond the scope cop Of his a "
ordinary sense and understanding would
know that It was illegal that It would be
'ai''' 1''u x CASE IN POINT
In Mccall vs.. Mcdowell. Abb. (U. 50
whTs az e asaar Sve an pS Ganp PLAIN
Douglass for false Imprisonment under a
genera, order OF the former for the arrest
Of D ppfpey nsso GYer the eort
Of authority. where at first blush It is
ana ho TO ord se 6
cannot but think that the law will excuse
military subordinate. when acting In
to the tn order q MS
dilemma Of being liable to damages. to
third persons, for obedience to the order.
or era 1sl foa 81 m
Between an order plainly legal and one
palpably otherwise there Is wide mid
and propriety Of orders depends. or may
depend upon circumstances and condi-
tons, OF which it cannot be expected that
such cases Justice to the subordinate de-
mands and the necessities and efficiency
Of the public service require that the or
der of the superior should protect the in
ferior; leaving the responsibility to rest
where 1t properly belongs. upon the Of
fcer who gave the command" The court
sitting without jury accordingly gave
finding damages against General Nc
In y. S. VS.. Carr. 1 Woods, 49, which
was case of the shooting OF soldier
in Fort Pulaski by the prisoner who was
sergeant OF the guard, Woods j.. after
wards of the Supreme Court OF the United
States charged the jury. place your
the time of the homicide. Inquire wheth-
er at the moment he fred his piece at the
deceased, with his surrounding at the
time. he had reasonable ground to be-
leve. and did believe, that the killing
or serious woundIng of the deceased was
necessary to the suppression OF mutlny
then and there existing, or, OF disorder
which threatened to ripen into mutiny.
If he had reasonable ground so to believe.
If on the other hand the mutinous con-
duct of the soldiers. II there was any
SUCH had ceased, and 1t SO appeared to
the prisoner, or If he could reasonably
have suppressed the disorder without the
resort to such violent means as the taking
Of the life Of the decea sed, and 1t would
so have appeared to a reasonable man
under like circumstances. then the kill
ing was unlawful. But it must be under
ficer charged with the order and discipline
of a camp or fort to weigh with scrlpu-
lous nicely the amount OF force necessary
to suppress disorder. The exercise OF
reasonable discretion Is all that Is re-
CURED"