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“ A new trial has been granted on account of the non-attendance of a material witness; and the ct. have granted it without costs, where a material witness for the defendant was kept out of the way by the contrivance (35) of the plaintiff, to prevent him from being served with a subpoena. The ct. have also granted a new trial, where it appeared clearly that the plaintiff's case was a mere fiction supported by perjury, which the defendant could not at the time of the trial be prepared to answer. The ct., however, will not in general be satisfied with the mere affidavit of the party making the application, contradicting the witnesses on the other side; the witnesses must be indicted (36), or some other satisfactory proof must be offered to the court, of the perjury. If a witness, however, make a mistake in his evidence, by reason of which a verdict was given against the party who called him, the court will not grant a new trial on this account, even although the mistake be explained to them by the affidavit of the witness himself (37). Also, an objection to the competency of witnesses (38), discovered after the trial ; although it may have some weight with the court, where the party applying appears to have merits " (39). “If the party, for whom a verdict is afterwards given, deliver to the jury, after they have left the bar, evidence which has not been shewn to the court, a new trial will be granted. So, if he have laboured the jury, or used improper influence with them to induce them to give a verdict in his favour(40), a new trial will be granted ; but merely desiring a juror to attend at the trial of the cause, is no ground for a new trial. So where by a fraudulent trick upon the part of the defendant, the plaintiff's counsel were taken by surprise (41), and the defendant thereby obtained a verdict, the court granted a new trial. If the plaintiff have given no notice of trial, or an insufficient notice, the court will grant a new trial (42). A new trial will seldom be granted,
where (35) Or procurement. Or where the witnesses have been tampered with, or induced to give a particular evidence.
(36) And if found guilty, the verdict would necessarily be set aside, if the verdict was given in consequence of such perjured testimony.
(37) Unless such mistake was of such a nature, that a correction of his evidence would have made a very material difference in the punishment ; such as if the crime would only have amounted to absence without leav?, instead of desertion, which in the latter case, may be death.
(38) Unless the testimony of such witness was the principal means of the conviction, in which case a Com. in chief would probably set aside the proceedings.
(39) Archbold's King's Bench Practice, vol. ii, p. 224.
(40) There is a case reported in the State Trials, of a prisoner, who delivered a paper to the jury, as they left the jury box to retire to consider of their verdict, containing the verdict he wished them to give, and was acquitted : hence the precaution of not allowing a jury to have any papers to take out with them, without the sanc. tion of the court. The above man was tried again by another jury, and acquitted by the second jury.
(41) Or if either party bave been allowed to introduce new evidence, and the other party were not allowed to examine into it.
(42) Or a copy of the charges have not been delivered. See case 2, p. 249.
where a verdict has been given against a party, or a plaintiff has been non-suited, for want of evidence which might have been produced at the trial, unless the verdict be manifestly against the justice and equity of the case (43). But if new evidence have been discovered after the trial, the court will grant a new trial upon payment of costs, if it be necessary, in order to do justice between the parties (44). The court, however, will not grant a new trial to let the defendant into a defence of which he was apprized at the first trial ” (45.—“ At any time before the rule for judgment expires, the party against whom the verdict is given, may move for a new trial.”—(Archbold's K.B. Practice, vol. I, p. 200.) · Therefore, the appeal from the regtl.ct.-mar. should be made before the sentence is carried into execution.
8. What would not amount to a vexatious and groundless Appeal.} If any inferior officer, non-com. officer, or soldier, has been tried before a regtl. ct.-mar., on a charge of mutiny or desertion, for instance, and sentenced by such court to punishment, he could appeal against such sentence, and shew that the regtl. ct.
mar. had not cognizance of those crimes, which are punishable by a gen. ct.-mar. only (46); and so with respect to any other crimes, where the Arts. of War clearly direct the infliction of punishment, on conviction, before a gen. ct.-mar. But this must be in cases where the terms of the charge are pointedly directed against, and charge the crimes of mutiny or desertion in positive language and terms, and not where those crinies are charged merely as riotous or disorderly conduct, or absence without leave ; and so with respect to other offences; for it is competent to the comg. officer to use his judgment, by either bringing the offender to trial on the graver or less criminal charge ; and therefore it is not the construction which may be put by the party tried, as to the conceived amount of his offence, but as to the amount actually charged being cognizable or not, by the regtl. ct.-mar. (47); or, if the regtl. ct.-mar. had awarded more than 300 lashes, contrary to a particular order on that subject, or any unwarranted punishment (48); or, if the number of the members of the court was below that directed by the Arts. of War (49); or, if the charges exhibited, were relative to transactions not cognizable by any ct.-mar., owing to the length of time elapsed exceeding that limited by the M. A. (50); or, if a copy of the charges had not been delivered to the prisoner, and notice given him of his
trial (43) According to the general principle of law, that no one shall take advantage of his own wrong.
Where the new trial is granted in such a case, it is in favour of general justice.
(44) This would support an appeal.
(46) See sec. ii, art. 3, Mutiny, and sec. vi, art. 1, Desertion ; but a gen, regtl. ct. mar. may in H. M.'s service.—(See Warrant, sec. xiv, art. 14.)
(47) See G. 0. C. C., 6th June, 1821, at sec. xiv, art. 12.
trial; or, if he shall have been confined many days without charges being exhibited against him, as in case 2 (51;; or, shall not have been brought to trial, though confined, within a reasonable or convenient time, and nothing occurred to prevent it (52); or, if there be native witnesses at the trial, and there be no sworn interpreter, as in case 2 ; or, where the conviction before the regtl. ct.-mar. is not borne out by evidence, as in case 1; or, if the prisoner has not been informed, before trial, as directed (53), of his being at liberty to except to any member, if he has any reasons for surmising any animosity or violent prejudice against him, and the court should refuse to attend to the objection ; or, if the president be not of the rank directed by the Arts. of War (54), and he had no opportunity afforded him of making the objection; or, if the members of the court should have been sworn by the Ann. Arts. of War, in the case of a Co.'s soldier, instead of by those framed specifically for the purpose; or if the court sat before or beyond the hours directed(55), unless in a case requiring an immediate example.
9. What would amount to a vexatious and groundless Appeal.] Where an investigation had taken place before a regtl. ct.-mar., and the court declared the charges to be groundless, frivolous, and vexatious, and an officer still persisted in appealing to a gen. ct.-mar., by which the party complained against was most fully acquitted, the appellant was informed that there was no further occasion for his services in the army.--(See case 3). And where a soldier was tried upon three charges, and appealed, and the gen. ct.-mar. found him guilty of the whole, except as to part of one charge, of no material consequence, the gen. ct.-mar. declared that the prisoner had not sustained his appeal.—(See case 5.) But, should it happen that on the appeal, the gen. ct.-mar. should find the prisoner guilty upon the whole charge or charges, but in a less degree, such would not be a frivolous, vecutious, or groundless appeal, as the prisoner may have conceived that the evidence did not warrant a full conviction, and that he was entitled to a re-hearing of the case, by which his punishment might be mitigated. The appeal in this case might be of a similar nature to case 1, where the gen. ct.-mar. declared that the decision of the regtl. court was not borne out by evidence. It might so happen that all the necessary witnesses were not examined on the first, and their examination on the second trial, may place the circumstances of the case in a new light; and very much take away from the aggregate amount of guilt found on the first, owing to a more full and complete investigation afforded by the second trial.
The appeal should also be brought within a reasonable time, it should be immediately (56); for if the appellant takes the opportunity of the death or absence of any witnesses (supposing him to be impri
soned), (51) Sec. xiv, art. 21.
(52) Sec. xiv, art. 21. (53) Sec G. 0. C. C., 6th May, 1820, at sec. xiv, art. 10. (54) Sec. xiv, art. 16.
(55) Sec. xiv. art. 7. (56) See conclusion to No. 7, p. 246. The art, should limit the period for making appeals.
soned), by whose testimony he was convicted on the main points of the charge, to bring forward an appeal against the decision of the regtl. ct.-mar, by which he was punished, such an appeal would be punished in the severest manner; as the intention of the party would be malicious, and from the absence of the witnesses formerly examined, it might not appear wholly groundless; since all the same facts might not be proved on the appeal. And, in fact, unless it should appear that there is a reasonable cause for the appeal, it will be vexatious and groundless, and to be instituted with the design of giving trouble, since the bare chance that a second trial may terminate in his favour, from some casual circumstances, would be such an appeal as would evince a litigating spirit, which it is highly proper and necessary should be repressed.
There is one singular fact deserving of notice, that in the cases given under this art., as appeals, in not one of them is it stated, that the soldier was wronged by his captain, &c. The words are, “ from which he was allowed to appeal.” This expression, as far as regards the H. E. I. Co.'s soldiers, however, it must be recollected, was necessarily used, as the right to appeal was not given by the former act of 27th Geo. II.
N. B. For the mode of proceeding before a gen., in an appeal from a regtl. ct.-mar., see Chap. XXIV.
Case l.] G. O. C. C. 13th Dec. 1819. Gunner J. Lowe, on the following charge, on which he had been convicted before a garrison ct.-mar., held at the same station, on the 13th Sept. last, and from which he had been allowed (57) to appeal to a gen. ct.-mar.
“Gunner Lowe, 2d comp. Ist batt. artil., confined for making use of highly disrespectful language to me (Lieut. H. T.), on the afternoon of the 9th inst. (Sept. 1819.)"
FINDING—The court, having duly weighed and considered what has appeared before them, are of opinion, that the decision of the gar. ct.-mar., from which the prisoner has appealed, finding him Guilty, is not borne out by the evidence recorded in the proceedings; and that, consequently, the sentence of the court is unjust. The court being of this opinion, do, therefore, acquit the prisoner, Gunner J. Lowe, of the crime alleged against him. Confirmed:
(Signed) HASTINGS. The Com. in chief confirms the decision of the court. The passage in the finding, which says, that the “judgment of the former court was not borne out by the evidence,” leaves it uncertain on what particulars of testimony the opinion is founded. The Com. in chief persuades himself the gen. ct.-mar. did not admit the plea of the prisoner, that the posture in which he stood, or the tone of voice which he used, when addressing his officer, were unfitly taken into consideration by the court from which he appealed; the charge against him being for highly “disrespectful language." It is obvious that tone and manner
may (57) The M. A., 27 Geo. 11, did not give the right to an appeal.
may give to language an unquestionable character of disrespect, while the words simply would be equivocal.
(Signed) J. Nicol, Adj.gen. Case 2.] G. O. C. C. 1817. At a gen. ct.-mar., the prisoner before the court being private J. Leonard, Hon. Co.'s Europ. regt,, who appeals from the sentence of a regtl. ct.-mar., and which court reassembled, pursuant to adjournment, on Thursday, the 15th July, 1817, at Berhampore, consisting of Capt. A. (president), Lieuts. G., H., and P., and Ens. C. (members).
Charge upon which the appellant was tried before the said regti. ct.-mar.
Private J. Leonard ordered into confinement by me, on complaint of Aeen-oo-Deen, a native merchant, for defrauding him, under false representations, of three silk sashes (58),
RESOLUTION of the Court.-It having been clearly proved, that although the appellant was placed in the barrack guard on the evening of Friday, the 11th July, and not brought to trial before Tuesday, the 15th of July, and that during that time he was not furnished with a copy of the crime on which he was to be tried (59); and it also appearing, that, although the evidences against the appellant were natives, there was no regular sworn interpreter (60) to the court; and the officiating Dep. Judge Adv.gen. having declared his opinion, that the proceedings of the regtl. ct.-mar. are thereby rendered invalid and illegal; the gen. ct.-mar., therefore, rest their proceedings until this opinion be submitted to the Most Noble the Com. in chief, and H. E.'s orders be received as to any further investigation.
I concur entirely in opinion with the Dep. Judge Adv.gen., that the proceedings of the regtl. ct.-mar. are invalid, through the informality noticed, and direct the prisoner Leonard to be freed from the charge.
HASTINGS. Case 3.] G.O. H. G. 10th March, 1818. At a gen. ct.-mar., Qr.mr. J. J., of the 4th (or R. I.) D. G., was arraigned upon the undermentioned charge, viz.
Ist. “Making excessive, exorbitant, and improper charges against the non-com. officers and private soldiers of the 4th (or R. I.) regt. of
D. G., (58) As remarked by the officiating Dep. Judge Adv.gen., the charge does not state, as to time and place; and, therefore, the prisoner could not be properly prepared to meet the charge. See printed trial, p. 18.)
(59) Tytler, p. 217.-- The officiating Dep. Judge Adv.-gen., stated in his minute, that the appellant did not even see the charge brought against him, until brought to the quarters where the court were assembled for his trial, when the serjt.maj. brought it out, and read it to him, and that the appellant did complain of it to the regtl.ct.-mar. on being taken before it. (See printed Trial, p. 18.)
(60) There is an interpreter to every regt. At the above period, the qr.-mr. of the Europ. regt. was not an interpreter ; but there was one attached to a native corps at the station, who was employed at a Court of Inquiry, and, therefore, this trial might have been postponed till he could have attended. It is usual for H. M.'s regts. to apply for an interpreter from some native corps at the station.—(See printed
Trial, p. 10.)