1 C.M.A. 174 | United States Court of Military Appeals | 1952
Opinion of the Court
The accused in this case was convicted. of a violation of the Articles for the Government of the Navy, 34 USCA § 1200, (unauthorized absence) upon trial by general court-martial
Was the court deprived of jurisdiction by reason of the fact that the charges were not sworn to before an officer, authorized to administer oaths ?
Article 30(a) of the Uniform Code of Military Justice, 50 USCA § 601, provides in part:
“Charges and specifications shall be signed by a person subject to this code under oath before an officer of the armed forces authorized to administer oaths . . . .”
As this part of the Article requires a swearing before an officer authorized to administer oaths it appears to make little difference whether the failure was to swear to the charges, or whether the swearing was before an officer not in fact authorized to administer oaths. In this case, the officer was not qualified to administer an oath.
In view of the requirements of Ar-tide 30, and of the admitted fact that the officer was not authorized to administer oaths, it is plain that there was error, and that the procedure was not in accordance with the provisions of the Article and of the Manual.
The federal courts have been called upon frequently to consider this same kind of question in construing the provisions of the Federal- Rules of Criminal Procedure. . They have uniformly held that,failure to object to an error of this kind constitutes a waiver, as the defect is one of form rather than substance.
The present Manual for Courts-Martial, 1951 (pp 33, 34) discusses the requirements of Article 30(a). "It contains the statement that “in no case may an accused be tried on un-sworn charges over his objection.” (p 34) The preceding Manuals for Courts-Martial contained similar provisions.
The procedure in this case was not strictly in accord with the law or provisions of the Manual. It was error and should, not be repeated. But it
Executive Order 10214, dated February 8, 1951.
MCM, 1951, pp 34, 467.
Art 59(a), Uniform Code of Military Justice, 50 USCA § 646.
See Annotations to Rule 7, Federal Rules of Criminal Procedure, (18 USCA, pp 142, 168, 178).
MCM, 1951, p 96.
MCM, 1949, p 25; MCM, U. S. Army, 1928, p 21.
United States v. Cox, 3 CMR(AF) 270, 290; United States v. Johnson, 72 BR 317, 340; Dig Op JAG 1912-40, p 296.