A court martial consisting of one officer has only jurisdiction of “ delinquencies and deficiencies ” that occur in the military force. (Sec. 201, chap. 547, Laws of 1880.)- It requires a court of three officers to hear and try offenses “ other than delinquencies and deficiencies.” (Same section.) The charge for disobedience of orders requires a three-officer court. “ Said court shall not have jurisdiction thereof unless the same (charges) shall have been approved by the officer ordering the court.” A copy of the charges are to be served. (Same section.)
A failure to plead to the jurisdiction of the court only waives such matters as an accused party may waive. He may waive notice and a copy of charges, but he cannot by omitting to plead lack of jurisdiction confer it upon a court which has none by law. In such a case the general rule is that consent cannot confer jurisdiction. It was extremely improper for the president of the court martial to return a letter from relator to II. C. King. It was not a part of the trial. It is a private letter to King. It is not proven. It could have no effect upon an invalid judgment.
The judgment should be reversed, with costs.
Dykman and Cullen, J J., concurred.Order and judgment reversed, with costs.