R
PUBLIC RECORD OFFICE
ן
Reference :--
CO. 885
- 15 PUBLIC RECORD OFFICE, LONDON
| ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
2
This man was convicted (1) under Section 6 (1) (F) of the Army Act, the offence being committed on active service; and (2) under Section 40 of the Act.
For the first offence he could have been sentenced to death, but the sentence was reduced under Section 44 to two years hard labour, and was sent home to undergo his sentence in this country. The question of the legality of his detention in England arises, and Mr. Chamberlain would be obliged if he could be favoured with Mr. Brodrick's views on the subject.
Trueman was enlisted under Lord Roberts's Proclamation, No. 24, of 22nd October, 1900, a copy of which is enclosed. Section 2 of this Proclamation provides that "members of the force may be called upon to serve as a military or police force in any part of South Africa." On the 11th of July, 1901, Lord Kitchener, in his capacity of High Commissioner, issued a Government Notice (No. 154 of 1901), stating that the South African Constabulary had been called out to serve as a military force in the Transvaal and Orange River Colony. Section 176 of the Army Act mentions among persons subject to military law as soldiers, "all non-commissioned officers and men serving in a force raised by order of His Majesty beyond the limits of the United Kingdom and India, It would appear, and serving under the command of an officer of the regular forces." therefore, that Trueman was liable to be tried and punished in accordance with the Army Act when the offence was committed.
If the first of the two offences of which Trueman was convicted had been dealt with in the Proclamation (No. 24 of 1900) as the second is (see Schedule, Section 18), Mr. Chamberlain is advised that he could not have been dealt with under the Army Act at all, but must have been dealt with under the Proclamation which ousts the Army Act where it applies in virtue of the proviso to Section 176 (3) of the Act. The first offence does not, however, appear to be dealt with in the Proclamation, and, as the punishment for this offence was a legal one, it does not appear necessary to raise the point that Trueman could not legally be proceeded against under the Army Act for the second offence, but ought to have been tried under the Proclamation. He would, however, be glad to receive an expression of Mr. Brodrick's opinion upon the matter.
Enclosure.
I am, &c.,
FRED. GRABAM.
Copy of charges, &c., against No. C. 1887, 3rd Class Trooper J. Trueman, South African Constabulary.
Tried by a Field General Court Martial at Heidelberg.
When on active service committing an offence against the property of an inhabitant of the country in which he was serving. (2) Do. (3) and (4) Conduct to the prejudice of good order and military discipline.
Sentence signed on the 9th day of August, 1901.
Sentenced to be imprisoned, with hard labour, for two years.
Confirmed by:
Major-General Cooper, C.B.
Certified true copy:
C. D. JOHNSTONE, Major,
Governor.
His Majesty's Military Prison,
York Castle,
January 20, 1902.
8005.
SIR,
No. 128A.
(BARBADOS,)
LAW OFFICERS TO COLONIAL OFFICE.
[Trial of Robert Carter, a Citizen of the United States, on a charge of Murder.]
Royal Courts of Justice,
February 25, 1902. We were honoured with your commands signified to us in Mr. Lucas's letter of Gov., No. 14, 18 January.
the 24th instant, stating that he was directed by you to transmit to us in original the papers noted in the margin relative to the trial of Robert Carter, an American citizen, at Barbados, on a charge of murder.
F.O. to C.O., 21 February,
S. of S. to Gov., Tel., 21 February. C.0. t F.O., 21 February.
Gov. to S. of S., 23 February. C.O. to F.O., 24 February.
That we would observe that Carter had been found guilty, and that his execution had been fixed for the Friday next, but that the Government of the United States of America had asked for stay of execution on the ground that the crime was rather man- slaughter than murder, and that the accused was condemned after a hasty trial and · without proper opportunity for defence.
That in your telegram to the Governor of the 21st instant you observed that the enclosures to the Governor's despatch No. 14 of the 18th January appeared to indicate that the case was one of manslaughter rather than of deliberate murdler, but, having regard to the Governor's telegram of the 23rd instant, you would be glad to be favoured with our observations on the correspondence with a view to deciding whether you should intervene further or let the law take its course.
That we should note in regard to the Governor's telegram that in the despatch of the 18th February the necessary witnesses were stated to have been left at Barbados.
We have taken the matter into our consideration, and, in obedience to your com- mands, have the honour to
Report-
1. That, assuming that the evidence given at the trial of Carter was substantially the same as that set out in the copy of the official log sent to us, we think there was sufficient evidence to be submitted to a jury, upon which they would be justified in finding a verdict of murder. In such a case, however, where the assault arose imme. diately out of the provocation caused by the use of insulting words, and no previous malice was shown, it would be open to the jury on a consideration of all the facts to find a verdict of manslaughter, and as we have not the actual evidence before us nor the judgment of the Chief Justice we are unable to form an opinion as to how far this alternative was suggested or considered, and we think therefore the execution should be respited pending further examination of the proceedings at the trial.
The Right Honourable J. Chamberlain, M.P.,
&c.,
&c.,
&c.
We have, &c.,
R. B. FINLAY. EDWARD CARSON,
11509-25-4/1902 Wt
D & S
ち