The circuit court has jurisdiction of a homicide committed by one soldier upon another within a military reservation of the United States.

If a homicide be committed by a military guard without malice and in the performance of his supposed duty as a soldier, such homicide is excusable, unless it was manifestly beyond the scope of his authority or was such that a man of ordinary sense and understanding would know that it was illegal.

It seems that the sergeant of the guard has a right to shoot a military convict if there be no other possible means of preventing his escape.

The common-law distinction between felonies and misdemeanors has no application to military offenses.

While the finding of a court of inquiry acquitting the prisoner of all blame is not a legal bar to a prosecution, it is ent.i.tled to weight as an expression of the views of the military court of the necessity of using a musket to prevent the escape of the deceased.

By order of the Secretary of War: R. C. DRUM, _Adjutant_General._

The following is taken from Circular No. 3, of 1883, from Headquarters Department of the Columbia:

VANCOUVER BARRACKS, W. T., _April_20,_1883_.

To the a.s.sISTANT ADJUTANT GENERAL, _Department_of_the_Columbia._

SIR:

A sentinel is placed as guard over prisoners to prevent their escape, and, for this purpose, he is furnished a musket, with ammunition. To prevent escape is his first and most important duty.

I suppose the law to be this: That a sentinel shall not use more force or violence to prevent the escape of a prisoner than is necessary to effect that object, but if the prisoner, after being ordered to halt, continues his flight the sentinel may maim or even kill him, and it is his duty to do so.

A sentinel who allows a prisoner to escape without firing upon him, and firing to hit him, is, in my judgment, guilty of a most serious military offense, for which he should and would be severely punished by a general court-martial.

(Signed) HENRY A. MORROW, _Colonel_Twenty-first_Infantry,_Commanding_Post._

[Third indors.e.m.e.nt.]

OFFICE JUDGE ADVOCATE, MILITARY DIVISION OF THE PACIFIC, _May_11,_1883._

Respectfully returned to the a.s.sistant adjutant general, Military Division of the Pacific, concurring fully in the views expressed by Col. Morrow. I was not aware that such a view had ever been questioned. That the period is a time of peace does not affect the authority and duty of the sentinel or guard to fire upon the escaping prisoner, if this escape can not otherwise be prevented.

He should, of course, attempt to stop the prisoner before firing by ordering him to halt, and will properly warn him by the words "Halt, or I fire," or words to such effect.

W. WINTHROP, _Judge_Advocate_.

[Fourth indors.e.m.e.nt.]

HEADQUARTERS MILITARY DIVISION OF THE PACIFIC, _May_11,_1883._

Respectfully returned to the commanding general, Department of the Columbia, approving the opinion of the commanding officer, Twenty-first Infantry, and of the judge advocate of the division, in respect to the duty of and method to be adopted by sentinels in preventing prisoners from escaping.

By command of Maj. Gen. Schofield: J. C. KELTON, _a.s.sistant_Adjutant_General._

See also Circular No. 53, A. G. O., December 22, 1900.

306. On approaching the post of the sentinel at the guardhouse, a sentinel of the prisoner guard or an overseer in charge of prisoners will halt them and call, "No. 1, (so many) prisoners."

He will not allow them to cross the post of the sentinel until so directed by the corporal of the guard.

307. Members of the prisoner guard and overseers placed over prisoners for work will receive specific and explicit instructions covering the required work; they will be held strictly responsible that the prisoners under their care properly and satisfactorily perform the designated work.

SECTION 17. FLAGS.

337. The garrison, post, and storm flags are national flags and shall be of bunting. The union of such is as described in paragraph 216, Army Regulations, and shall be of the following proportions: Width, seven-thirteenths of the hoist of the flag; length, seventy-six one-hundredths of the hoist of the flag.

The garrison flag will have 38 feet fly and 20 feet hoist. It will be furnished only to posts designated in orders from time to time from the War Department, and will be hoisted only on holidays and important occasions.

The post flag will have 19 feet fly and 10 feet hoist. It will be furnished for all garrison posts and will be hoisted in pleasant weather.

The storm flag will have 9 feet 6 inches fly and 5 feet hoist.

It will be furnished for all occupied posts for use in stormy and windy weather. It will also be furnished to national cemeteries.

(A. R. 223.)

338. At every military post or station the flag will be hoisted at the sounding of the first note of the reveille, or of the first note of the march, if a march be played before the reveille. The flag will be lowered at the sounding of the last note of the retreat, and while the flag is being lowered the band will play "The Star Spangled Banner," or, if there be no band present, the field music will sound "to the color." When "to the color"

is sounded by the field music while the flag is being lowered the same respect will be observed as when "The Star-Spangled Banner" is played by the band, and in either case officers and enlisted men out of ranks will face toward the flag, stand at attention, and render the prescribed salute at the last note of the music. (A: R. 437.)

The lowering of the flag will be so regulated as to be completed at the last note of "The Star-Spangled Banner" or "to the color."

339. The national flag will be displayed at a seacoast or lake fort at the beginning of and during an action in which a fort may be engaged, whether by day or by night. (A. R. 437.)

340. The national flag will always be displayed at the time of firing a salute. (A. R. 397.)

341. The flag of a military post will not be dipped by way of salute or compliment. (A. R. 405.)

342. On the death of an officer at a military post the flag is displayed at halfstaff and so remains between reveille and retreat until the last salvo or volley is fired over the grave; or if the remains are not interred at the post until they are removed therefrom. (A. R. 422.)

343. During the funeral of all enlisted man at a military post the flag is displayed at halfstaff. It is hoisted to the top after the final volley or gun is fired or after the remains are taken from the post. The same honors are paid on the occasion of the funeral of a retired enlisted man. (A. R. 423.)

344. When practicable, a detail consisting of a noncommissioned officer and two privates of the guard will raise or lower the flag. This detail wears side arms or if the special equipments do not include side arms then belts only.

The noncommissioned officer, carrying the flag, forms the detail in line, takes his post in the center and marches it to the staff.

The flag is then securely attached to the halyards and rapidly hoisted. The halyards are then securely fastened to the cleat on the staff and the detail marched to the guardhouse.

345. When the flag is to be lowered, the halyards are loosened from the staff and made perfectly free. At retreat the flag is lowered at the last note of retreat. It is then neatly folded and the halyards made fast. The detail is then re-formed and marched to the guardhouse, where the flag is turned over to the commander of the guard.

The flag should never be allowed to touch the ground and should always be hoisted or lowered from the leeward side of the staff, the halyards being held by two persons.