of lenity and mercy, or in favour of natural right and liberty; or, in other words, the decision shall be according to the strict letter in favour of the subject" (20). As the art. in question is in the nature of a remedial, and not of a penal statute, except the appeal fails, it is but just that it should be considered in the former light. The cases in which an appeal would be sustained, or the former sentence confirmed, will be shown by analogous cases of granting new trials in other courts; which, in the absence of any positive direction on the subject, would, it may be presumed, govern a gen. ct.-mar., in some measure, in deciding as to the appeal being vexatious or groundless. If a soldier, &c. should be acquitted by a regtl. ct.-mar., the officer bringing him to trial would seldom (21) be allowed an appeal; at least, I know of no precedent, except in the particular case provided for by the 2d art. sec. x: in the one case, the officer does not obtain a sentence against the soldier; in the other, the officer may, by an appeal, set aside the decision of the regtl. ct.-mar. given against himself.

7. In what cases a new Trial is granted or refused, tending to show when an Appeal would and would not be sustained.] "If any error in the proceedings appear upon the face of the record, the party injured by it has his remedy by demurrer, motion in arrest of judgment, or writ of error, according to circumstances (22). But if any defect of judgment happen from causes wholly extrinsic, arising from matter foreign to or dehors the record, the only remedy the party injured has (if we except the writ of coram nobis in some few cases), is by application to the court for a new trial" (23).

"The ct. must be satisfied that there are strong probable grounds to suppose that the merits have not been fairly and fully discussed, and that the decision is not agreeable to the justice and truth of the case, before they will grant a new trial" (24).

"If the judge (25) misdirect the jury, even in a penal action, it is in general a good ground for a new trial; unless the ct. be satisfied that justice has been done between the parties, notwithstanding the misdirection. Also, ifa judge at the trial admit improper evidence, or reject evidence which ought to be admitted, by which means the result of the trial has been different from what it otherwise would have been, the ct. will in general grant a new trial (26). But the ct. have refused to grant a new trial upon the ground of the improper rejection of evidence, where that evidence went to prove merely a fact which had already been proved by other means; and the ct. of Common Pleas refused a

(20) Blackstone, vol. i, p. 88, note 20.

(21) Except in clear misconduct on the part of the court.

new

(22) The principle upon which a new trial is granted, may be applied to cases of appeal, or of revision of the sentence, or non-confirmation of the sentence.

(23) See note 22.

(24) Or an appeal or revision, as applied to courts-martial.

(25) Or Judge Adv. misinform the court, as to the law of the case, and the court adopt it.

(26) See note 22.

new trial for the improper admission of evidence, where there appeared to be sufficient evidence to support the verdict, independently of the evidence so admitted" (27).

gene

"If the jury find a verdict contrary to evidence, the ct. will in ral grant a new trial, particularly if the justice of the case require it (28). But if the verdict be such as the justice and equity of the case required, although it be contrary to evidence, yet the ct. will not disturb it. So, if a verdict be found for the defendant against evidence, in a vexatious or hard action; or for the plaintiff, after an unconscionable defence set up by the defendant: a new trial will not be granted. Nor will the ct. grant it in any other cases of strict right or summum jus, where the rigorous exaction of extreme legal justice would be hardly reconcilable to conscience. Also, where evidence has been given on both sides, the ct. will seldom grant a new trial, unless the evidence against the verdict very strongly preponderate. In actions ex delicto, such as actions for criminal conversation, seduction, battery, false imprisonment, or other personal torts, malicious prosecution, slander, or the like, a new trial is seldom granted on this account, unless the damages be outrageous, or the ct. be satisfied that the jury acted under the influence of undue motives, or of gross error or misconception. On the other hand, a new trial will not be granted, on account of the smallness of the damages, unless it have arisen from some mistake in point of law (29), either upon the part of the ct., or of the jury, or from some unfair practice upon the part of the defendant. In penal actions, if there be a verdict for the plaintiff, the ct. will grant a new trial in the like cases as in other actions; but if the jury have found a verdict for the defendant, a new trial is never granted (30), unless for the mistake or misdirection of the judge. For the misconduct of the jury, also, the ct. will in general grant a new trial, if the misconduct be such as to satisfy the ct. that the verdict has been determined on, without that grave and serious deliberation, that right exercise of judgment, and that total absence of all partiality (31), so necessary to the proper execution of the important duties of jurymen: thus, if the jurors eat or drink at the expense of the party for whom they afterwards find a verdict; or if they determine their verdict by lots (32); or if they or any of them have previously declared that the plaintiff should never have a verdict (33); or the like: the ct. will set aside the verdict, and grant a new trial" (34). "A

(27) Archbold's King's Bench Practice, vol. ii, p. 222. (28) See note 22.

(29) This may apply to an appeal, or the revision of a sentence.

Thus in case 1,

p. 120, where the court dismissed an officer instead of cashiering him, as directed by

the article upon which he was found guilty. And the like cases.

(30) This is a principle in favour of a prisoner.

(31) Or if there be evident prejudice against a prisoner.

(32) Or give up their judgment to others, who may be prejudiced against a prisoner. (33) Or expressed an opinion during the trial, that the prisoner deserved to be hanged, or is a disgrace to his regt.

(34) Archbold's King's Bench Practice, vol. ii, p. 223. See also note 22.

“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 leave, 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 have 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 crimes 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.

(45) Archbold's King's Bench Practice, vol. ii, p. 225. See note 43.

(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. O. C. C., 6th June, 1821, at sec. xiv, art. 12.

(48) See Circular, H. G., 25th March, 1812, at sec. xiv, art. 10.

(49) Sec. xiv, art. 11.

(50) See M. A., sec. lxxi, No. 16, p. 19.

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.

ap

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 pealed, 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, vexatious, 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

(51) Sec. xiv, art. 21.

(52) Sec. xiv, art. 21.

(55) Sec. xiv. art. 7.

(53) See G. O. C. C., 6th May, 1820, at sec. xiv, art. 10.

(54) Sec. xiv, art. 16.

soned),

(56) See conclusion to No. 7, p. 246. The art. should limit the period for making

appeals.