ESTABLISHMENT OF MILITARY JUSTICE .

77 5
until about 3 a . m. of that morning, and finally necessitated his putting a guar
on with night sticks. " d
There is no allegation and nothing in the record upon which to found a belie f
that the noncommissioned officers who were tried and convicted, as above se t
out, were engaged in this disturbance that Capt . Harvey referred to, or tha t
they were participants in the " crap game," which seems to have been the im-
mediate cause of the general arrest ordered by him. It clearly appears fro m
the record that he intended to include in this general order of arrest the entir e
personnel of his battery from the first sergeant down, although the first sergean t
was at the time absent from the post with a provost guard in the city of E l
Paso. (See p . .) The next morning at reveille some of the noncommissione d
officers of the battery did not leave their tents, but others (lid, and, of the latter ,
some, at least, had not then learned of the status of arrest in which the batter y
had been placed . Similarly, at the formation of the battery for stables, som e
of the noncommissioned officers formed with the battery for this duty an d
others did not . Between stables and the formation of the battery for mornin g
drill, the first sergeant seems to have been made aware that the noncommis-
sioned officers of the battery, other than himself, were laboring under a belie f
that while in the status of arrest it was not proper for them to perform duty ,
and he sent a message to this effect to the battery commander, who directe d
the first sergeant to report to him in person . Just what report the first sergean t
made to the battery commander does not appear, but the record shows that th e
battery cammander told the first sergeant to release the noncommissioned officer s
from arrest " until after drill ." The first sergeant then returned to the bat-
tery and summoned all the noncommissioned officers to report at the batter y
office, which they (lid . He told them that Capt . Harvey had directed that they
be released from arrest until after drill . Here again the record does not affor d
a clear indication of just what happened, but it may be inferred, from what i s
shown, that these noncommissioned officers protested against the performanc e
of duty until their status of arrest had been definitely terminated . Practicall y
all of the noncommissioned officers who testified as witnesses and who wer e
present at the battery office at this time agree in stating that the first sergean t
told them, as they were leaving the office, that he was sending for the batter y
commander and that they were to " stick around until the battery commande r
comes ." The first sergeant states that he did not make this remark, but claim s
to have said, " all right, I'll send for the battery commander ." At any rate ,
he appears to have sounded the call for drill, which consisted of two lon g
blasts on a whistle, immediately after this gathering which he had ordered .
While the privates of the battery formed for drill, the noncommissione d
officers remained near the battery office in a group, where, as they state, th e
first sergeant had told them to " stick ." Capt . Harvey then appeared upon the
scene. He states that he went immediately " to the orderly room of the batter y
and met the first sergeant and asked him what the trouble was ." The firs t
sergeant told him that the men were not going to drill, and immediately there-
after stepped toward these noncommissioned officers, who were still standin g
near the battery office, and said : "Are you men going to drill? " The testimon y
indicates th't there were some replies of " No" from the assembled noncom-
missioned officers . They explain this by stating that they did not intend to
refuse to go to drill, but only to indicate that they did not believe it was prope r
to require them to attend drill in their official capacities until their status o f
arrest had been properly terminated . The captain testified that at this poin t
he told the first sergeant " not to ask the men if they were going to drill, t o
order them to go to drill," and that the first sergeant then began to order them
individually to go to drill . The exact form of the order which was given at thi s
time does not appear from the record, but the captain states that after he ha d
ordered about half of them personally and individually to go to drill, " I tol d
him that that would be sufficient, and then I talked to the men for severa l
minutes, I should say probably four or five minutes about the situation ." Th e
testimony of other witnesses here is that the first sergeant ordered from two t o
five or six of the men to go to drill . Capt . Harvey states that in this talk he
explained to the men " that they were committing a grave offense, that thei r
Conduct was mutinous, and that the crime of mutiny was next to treason, th e
most serious in the category . I told them that in my opinion they would prob-
ably receive as much as 10 years' punishment if they were convicted. "
After finishing this talk Capt . Harvey does not appear to have given any
further order to any of these men, either collectively or individually, to joi n
their battery for drill, but states that he walked away from the men and