(concurring).
I concur in the judgment and, in the main, with the reasoning of Judge DIETRICH. Perjury is punishable by Naval Courts Martial under the laws of the United States. 2 Stat. 45, art. 3; 12 Stat. 600, R. S. § 1624, 34 USCA § 1200; 6 Op. Attys. Gen., Naval Courts and Boards, pp. 233, 290. The charge is usually made as “scandalous conduct tending to the destruction of good morals,” and the specification thereunder alleges the facts constituting the perjury. Naval Courts and Boards, § 290. The Sec*47retary has adopted a similar method of procedure for that service. Coast Guard Courts and Boards of 1923, § 202. These regulations for the Coast Guard are promulgated under the authority of Congress. See act referred to in main opinion, 34 Stat. 200 (14 USCA §§ 35, 142-147). In view of this situation, if there wore not other controlling considerations, I would be inclined to hold that, when Congress adopted the phrase in the law giving jurisdiction to the courts-martial in the Coast Guard so long used in the Navy to eharge perjury that it thereby conferred such jurisdiction upon the Coast Guard. That is, by conferring jurisdiction upon its courts-martial to try its members for “scandalous conduct to the prejudice of good morals,” it thereby conferred upon them jurisdiction over a eharge of perjury. The phrase “scandalous conduct to the prejudice of good morals” is a stranger to the common law, but has long been a familiar one in military law. It is found in the act of Congress 1800 enacting the articles of war for the government of the Navy (2 Stat. 45, art. 3). Its application and moaning has been developed, not only in our own military, naval, and marine courts-martial, but also in similar courts-martial of Great Britain, and, so far as it has been so fixed, it must be deemed to he adopted by Congress in conferring jurisdiction on the Coast Guard courts-martial. No one would doubt that perjury “tended to the destruction of .good morals” or that it was “scandalous conduct” in a general or abstract sense. However, the eharge of perjury has been specially dealt with. At the present time, jurisdiction to try its personnel for perjury is conferred on the Navy by 34 USCA § 1200, art. 8, formerly article 22 (see Smith v. Whitney, 116 U. S. 167, 181, 6 S. Ct. 570, 29 L. Ed. 601), and similarly on the Army courts-martial (Ex parte Reed, 100 U. S. 13, 25 L. Ed. 538). It follows that the manner of charging perjury is no longer significant in the Army or Navy from a jurisdictional point. Their jurisdiction over their personnel is clear.
It appears, however, that the jurisdiction of courts-martial over the offense of perjury has been a subject of special consideration both in this country and in England.
It has been said that false swearing before a court-martial was not an offense at common law (Davis, Military Law, 455, same page in 3d Ed.; Hough on Courts Martial, 1825; see statement of Lord Chief Justice Mansfield quoted in Hough, supra, pp. 417, 418), .although Chief Baron Gilbert seemed to hold otherwise (see Tytler on Military Law, 1814). Our Congress in 1799 (1 Stat. 709) provided that “prevarication” before a court-martial should be punished by the courts-martial, but that “wilful perjury shall and may be punished by indictment,” etc. This rule was again re-enacted by Congress in 1800 (2 Stat. 45, art. 37). The same legislation was adopted by Parliament (Mutiny Act, see ex lix 824; 4 Geo. 4, lxiv of Mutiny Act). See 22 Geo. II, Chap. 32, Sec. 17, cited in McArthur on Military Law (1806) vol. 2, p. 141. Perjury was ehargod in the Army courts-martial as conduct to the “prejudice of good order and discipline,” and article 99 of the Articles of War. See Winthrop Military Digest of 1868, subject “Perjury.” Finally the jurisdiction of Army and Navy courts-martial was extended to cover all crimes not otherwise specified, and hence of. course included perjury. The same increased jurisdiction has been conferred in Great Britain. Cochrane on Military Law, 1884, citing Army Act 1881, § 4—a, c. 4, p. 127.
In view of the fact that, as early as 1800, Congress conferred jurisdiction upon naval courts-martial over “scandalous conduct tending to the destruction of good morals” (2 Stat. 45, art. 3), and in the same statute, volume 2, p. 45, art. 37, made a special provision for the punishment of “deliberate and wilful perjury before a court-martial” by indictment, and perhaps made it mandatory by requiring that it “shall and may ho” so prosecuted, that Congress then recognized a distinction between “perjury” and “scandalous conduct,” etc., for the purposes of prosecution.
• In view of this special recognition of perjury in military law, I am inclined to conclude that, while perjury committed in the affairs of the Coast Guard, in violation of oaths taken before its courts-martial or in connection with its administration, would be “scandalous conduct to the prejudice of good morals,” an offense against the' discipline of the Coast Guard within the meaning of the act of Congress (14 USCA § 143, 34 Stat. 200, § 3), that perjury committed before a United States District Court, as a witness in a trial, is more appropriately triable under the criminal law by indictment, and that therefore when Congress conferred jurisdiction on the Coast Guard courts-martial in general terms over charges of scandalous conduct, etc., it did not intend thereby to confer jurisdiction over such an offense so committed, before a United States court, because of the special reservation to which Judge DIETRICH refers in his opinion, “that for offenses against the laws of the United States *48other than those specified in this act offenders shall be turned over to the civil authorities.”
It is unnecessary here to consider the question as to whether such an offense so committed against another sovereignty than the United .States could be taken cognizance of by a court-maTtial of the Coast Guard as an offense against the discipline of the Coast Guard. See Grafton v. U. S., 206 U. S. 333, 353, 27 S. Ct. 749, 51 L. Ed. 1084, 11 Ann. Cas. 640; Fox v. Ohio, 5 How. 410, 453, 12 L. Ed. 213; U. S. v. Marigold, 9 How. 560, 13 L. Ed. 257; Moore v. State of Illinois, 14 How. 13, 19, 20, 14 L. Ed. 306; In re Stubbs [C. C.] 133 F. 1012.
Notwithstanding the fact that the perjury charged by the Coast Guard in its courts-martial concerned the duties of the appellant as a member thereof, I concur in the conclusion that this is an offense against the laws of the United States which Congress directed to turn over to the civil authorities for prosecution and for that reason that the Coast Guard courts-martial had no jurisdiction thereof.