Delaware General Assembly

CHAPTER 46

DELAWARE NATIONAL GUARD

AN ACT to amend Chapter 8 of the Revised Code of the State of Delaware, as amended by Chapter 22, Volume 32, Laws of Delaware, relating to the Public Arms and Defense. Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met: Section 1. That Chapter 8, of the Revised Code of the State of Delaware, as amended by Chapter 22, Volume 32," Laws of Delaware, entitled, "An Act to amend Chapter 8 of the Revised Code of Delaware 1915, as amended, and Chapter 15, of said Code relating to the Public Arms and Defense" be and the same is hereby amended by the repeal of 310, Sec. 18 thereof and by the substitution for said repealed Section of the following:

310. Sec. 18. COURTS-MARTIAL: Courts-martial shall be Courts-Mar. of three kinds, namely: General, special and summary. They kind° shall be constituted like, and have cognizance of the same subjects and possess like powers, except as to punishments, as Similar courts provided for by the laws and regulations governing the army of the United States and the proceedings of courts-martial of the Delaware National Guard shall follow, so far as practicable, the forms and modes of procedure prescribed for said similar courts. Except for certain offenses hereinbefore specified, all charges and specifications shall be laid under some one or more of the Articles of War, which Articles of War shall be of the same force and effect in any proceeding before any court-martial as if the same had been herein enacted at length.

3I0A. Sec. 18A. COURTS-MARTIAL; HOW CONVENED; PUNISHMENTMENT OF OFFENDERS ;General courts-martial in the Delaware National Guard may be convened by order of the Governor, and such courts shall have the power to impose fines Punishment of not exceeding two hundred dollars ($200.00), to sentence to Offenders forfeiture of pay and allowances, to reprimand, to dismissal or dishonorable discharge from the service, to a reduction of non-commissioned officers to the ranks, or any two or more of such punishments may be combined in the sentences imposed by such courts: Provided, that sentence shall not become operative until after the approval thereof by the appointing power.

310B. Sec. 18B. SPECIAL COURTS-MARTIAL: When not in appointed the active service of the United States, the commanding Officer of each camp, regiment or separate battalion, may appoint special courts-martial for his command ; but such special courts-martial may, in any case, be appointed by superior authority, when by the latter deemed desirable. Special courts- lower, of martial shall have power to try any person subject to military law, except a commissioned officer, for any crime or offense made punishable by the military laws of the United States or of the State of Delaware; and such special courts-martial shall have the same powers of punishment as do general courts-martial, except that fines imposed by such special courts-martial penalty shall not exceed one hundred dollars ($100.00) : Provided, that sentence shall not become operative until after the approval thereof by the appointing power.

310C. Sec. I8C. SUMMARY COURT: When not in the active service of the United States, the commanding officer of each garrison, fort, post, or other place, regiment, detached or separate battalion, or company, or other detachment of the Delaware National Guard, may appoint, for such place or command, a summary court, to consist of one officer, who appoint shall have power to administer oaths, and to try to* enlisted men of such place or command for breaches of discipline and violations of the laws governing such organizations, except civic by-laws ; and said court, when satisfied of the guilt of such soldier, may impose tines not exceeding twenty-five dollars ($25.00) for any single offense, may sentence non-commissioned officers to reduction to the ranks, may sentence to forfeiture of pay and allowances. The proceedings of such summary court shall be informal, and the minutes thereof shall be, so far as practicable, the same as prescribed for summary courts of the Army of the United States: Provided, that the Proviso sentence shall not become operative until after the approval thereof by the appointing power.

310D. Sec. 18D. CONFINEMENT IN LIEU OF FINES: All courts-martial, including summary courts, of the Delaware National Guard when not in the active service of the United States, shall have power to sentence to confinement in lieu of fines authorized to be imposed: Provided, that such sentences of confinement shall not exceed one day for each dollar of fine authorized and imposed: Provided, further, that the sentence shall not become operative until after the approval thereof by the appointing power.

310E. See. 18E. APPROVAL BY GOVERNOR: When the Delaware National Guard is not in the active service of the United States, sentence of dismissal from the service or dishonorable discharge, imposed by court-martial shall not be g executed until approved by the Governor.

Sec. I8F. WARRANTS AND SUBPOENAS :---When not in the active service of the United States, presidents of courts- martial and summary court officers shall have power to issue warrants, directed to the sheriff of the proper county or any constable, to arrest accused persons and to bring them before the court for trial, whenever such persons shall have disobeyed an order in writing from the convening authority to appear before such court, a copy of the charge or charges having been delivered to the accused with such order in the manner provided by law for service of civil process, and to issue subpoenas and subpoenas duces tecum, and to enforce by attachment attendance of witnesses and the production of books and papers, and to sentence for a refusal to be sworn or to answer, as provided in actions before civil courts.

*So enrolled.

310G. Sec. 18G. FINES; HOW COLLECTED; PROCEDURE BE- FORE JUSTICE OF THE PEACE; COMMITMENT: Upon the finding of any such court-martial or summary court imposing any of said fines, and upon the approval of the finding by the officer appointing said courts, the fine or fines so imposed shall be and become at once payable ; and in case any officer or enlisted man upon whom a fine has been imposed in accordance with the provisions of this Section, shall fail, refuse or neglect to pay the fine so imposed upon him, within ten days after he shall have been notified thereof, the said fine may be collected in the name of the State, before any Justice of the Peace in the County or City where the delinquent resides, in the manner hereinafter provided: Upon the production and filing of Peace a certified abstract of the findings or judgment of a court- martial or summary court imposing a line with any Justice of the Peace of the State, the said justice of the Peace shall forthwith enter such finding or judgment upon the records of his State Docket in the name of the State of Delaware against the defendant in the proceedings before the Military Court ; and the said proceedings shall thereupon be and constitute a part of the records in the office of the said Justice the Peace. If the said fine together with the costs of entry be not immediately paid the said Justice of the Peace shall house forthwith issue a warrant of commitment directed to any Sheriff or constable in the County commanding him to take the said defendant and deliver him into the custody of the keeper of the jail (or workhouse) of said county for a period not exceeding one day for each dollar of the total amount of the fine and costs, or until said fine and costs be sooner paid; and the said warrant of commitment shall lie a sufficient authority to the officer to whom the same shall be issued to authorize the seizure and taking into custody of the said defendant for the purposes aforesaid.

The said Justice of the Peace shall be entitled to a fee of fifty cents ($.50) for the filing and recording of the said certified abstract and shall be entitled to such further fees as he is now authorized by law to charge for like services in criminal cases.

The fees to the officers serving the commitment shall be the same as now provided by law for like services in criminal cases.

310H. Sec. 18H. CONFINEMENT IN JAILS: The keepers and wardens of all county jails are required to receive and confine all military offenders, when delivered by such sheriff or constable under the proper certificate of commitment of a general, special, or summary court-martial, for and during the term of sentence as set forth in said commitment.

310I. Sec. 18I. DISOBEDIENCE OF SUBPOENAS, PUNISHMENT FOR :Every witness not appearing in obedience to such subpoena when duly served, and not having a sufficient or reasonable excuse, shall forfeit to the State of Delaware a sum of not less than ten nor more than fifty dollars for each default; and the president or officer of such court shall, from time to time, report to the Attorney General the names of such delinquent witnesses, together with the names and places of residences of the persons serving such subpoena, the better to enable him to prosecute for such forfeiture.

310J. Sec.18J. FINES AND FORFEITURES PAID INTO STATE TREASURY: All fines and forfeitures imposed and collected through the sentence of courts-martial shall be forwarded to the Adjutant General, and by him paid into the treasury of the State of Delaware.

310K. Sec. 18K. VIOLATIONS BY SHERIFF, CONSTABLES AND WARDENS OF DUTIES IMPOSED; PENALTIES: The neglect or refusal of any sheriff, constable, or jail warden to execute any process, or to make proper return of all fines and penalties collected, or to receive in custody any prisoner, shall be deemed a misdemeanor, and shall subject the offender to a prosecution by the Attorney General, and to a penalty, upon conviction of each such offense, of one hundred dollars ($100.00), to the use of the State of Delaware.

Approved April 5, A. D. 1923.