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extend to any part of the examination in chief (26); and here there may be leading questions (27). • The questions may be framed in this way:-Q. “You have stated so and so,- do you mean to say that you did see me leave the barrackroom ?” Or, where an explanation is required, thus:-“ You have said that you are certain you saw me leave the barrack-room-how do you know that I am the person who did leave the barrack-room?" The prisoner having finished his cross-examination, the court record the same; then
14. Ist Witness examined by the Court.] The court may examine as to any thing given in evidence in the examination in chief, which may tend to satisfy their own minds, and to clear up any doubts as to the evidence given ; and this during any stage of the trial, before they have commenced to vote as to the question of guilt or innocence. (Record the prisoner having no further questions to put).
15. Ist Witness re-examined by the Prosecutor.] The prosecutor is entitled to re-examine as to any matter which has come out upon the prisoner's cross-examination, but he cannot go back to the examination in chief.
16. Questions omitted put by Court.] Though, to preserve regularity in the proceedings, it is not the practice of courts of justice to allow questions to be put out of the due order which has been above shown; still, before the witness leaves the court, if either the prosecutor or prisoner state that they have any material question to put, the court, to insure justice being done, always allow the question to be put, if not objected to by either party on sufficient and assigned grounds. * 17. Objection taken to the proposed Question.] The objection may go as to the irrelevancy of the question, or as to its legality: in either case, the court (as jurors and judges on the trial) must decide; and this in close court, having first heard the objection, and minuted down the question. The prosecutor, prisoner, and witness are now directed to withdraw. (Record this fact). : 18. Court closed to consider the Question.] The court having duly considered the question proposed to be put, decide in the negative or affirmative; and, in coming to this decision, the majority of the voices of the court will carry the question or reject it: and here the votes are taken, begining with the youngest member. . "19. Court re-opened.] The court being again opened, the prosecutor, prisoner, and witness are re-admitted. The president now informs the party, that the question he proposed to put cannot be put, or that it may be put; or, that it cannot be put in the proposed shape, but may be put, subject to a modification as to the wording of it; and the court
may (26) See cross-examination, Chap. XXIII, No. 102, p. 914. (27) See leading questions, Chap. XXIII, Note 152, p. 914.
may propose the shape which shall be given to it. The court's decision must be final on the subject (28).
20. Character of the Witness impeached.] If the character of the prosecutor's witness be impeached as to his credit, it will be better to establish his credit after all the witnesses have been examined, as proof of the fact to which he speaks, by other witnesses, may render it unnecessary; and doing so at the moment, though it is sometimes done in courts of justice (29), interferes with the succession of proofs; and it is therefore recommended not to be adopted. The party whose character has been attacked, may himself take his course, and should be informed of the fact.
21. Evidence read over to Witness before he leaves the Court. Before a witness leaves the court, his evidence should be read over to him, and he should be allowed to correct his evidence; the part should not be struck out, but be left, that the approving authority may be able to judge of any discrepancy in his evidence. (The witness withdraws.)
22. 2d Witness for the Prosecution called by the Prosecutor.] The same course to be pursued as in Nos. 12 to 21, both inclusive.
23. The Prosecution being concluded, the Prisoner is asked what he has to say in his Defence.] The prisoner is asked what he has to offer in his defence, against the evidence which he has heard given by the witnesses for the prosecution. If the prisoner should solicit the indulgence of a little time to prepare his defence, it is usually granted.
24. Adjournment (30) of the Court to give Time to the Prisoner to prepare his Defence.] But few men are capable, except in very ordinary cases, of entering upon their defence immediately they have heard all the evidence against them, unless they have been much accustomed to proceedings of this nature; and a ct.-mar. always consider this request with a kind and indulgent consideration. Considering the station in life of the person who ask this indulgence, with the view of consulting their friends, it is seldom refused.
It is usual to ask the time required; and the time granted depends upon the nature of the crime, and all the circumstances of the case. It seldom exceeds three or four days.
(28) With respect to any objection to questions, the party proposing the question cannot insist on the court recording the fact of having refused to put any question. It might so happen that the question was material, but all the party can do, is to make the request, and the refusal is the final decision of the court. In the case of an examination in chief, or a cross-examination, the refusal might be a ground for an appeal to a genl. ct.-mar. The party may minute down the question, but, for the present, the question has been decided against the party, and the persisting that it should be recorded would be a contumacious conduct which the court would notice.
(29) See Witnesses, Chap. XXIII, No. 107, p. 916.
(30) The court must always adjourn whenever the legal hour has passed, which is four o'clock (see art. 7, sec. xiv, p. 376), unless under the particular circumstances therein stated. The court muy also adjourn whenever their so doing may appear to the president to be proper.-(See more on adjournments at genl. cts.-mar.)
The court having granted the indulgence, record it upon the proceedings.-" The court adjourn from this day to — , to enable the prisoner to prepare for his defence;" and the prisoner is directed by the president to be taken to the place of confinement from which he was brought; and all the parties are directed to attend on the day and hour fixed for the re-assembly of the court (31).
25. Assembly of the Court pursuant to Adjournment.] The court having met pursuant to adjournment, the president ascertains that all the members, &c. are present, and makes the following entry:—“Parrack-poor, Friday, the — day of — , 182—. The court met pursuant to adjournment, the members all present as before; the prosecutor and prisoner are called into court; the proceedings of the former day are read over; and the prisoner is put upon his defence."
26. The Prisoner put upon his Defence.] The prisoner is now called upon to make his defence. He may request the proceedings to be read over, which is never refused.
The prisoner having been allowed time to prepare his defence, which is usually in writing, now reads it. The prisoner either reads his defence himself, or, if unable to do so, (which is the only plea for his not so doing), some member of the court must read it; for it has been settled, that no friend of the prisoner can be allowed to read it for him (32).
The defence of the prisoner is usually read before he adduces his evidence, but it is optional with him to do so, or to examine his witnesses and then speak upon the whole evidence; but he must make his election, as he cannot be heard twice. The court are at liberty to prevent the prisoner stating any thing in his defence, tending to cast reflections upon third persons, or others, not at all connected with the trial.
Supposing the prisoner, in the first instance, to have read or spoken in his defence, he next calls his witnesses.
27. Ist Witness for the Defence.] The same course is pursued as in Nos. 12 to 21, both inclusive (enter witness, withdraws).
28. 2d Witness for the Defence. The same course is pursued as in Nos. 12 to 21, both inclusive (enter witness, withdraws).
29. Character of Prisoner.] It is often important for the prisoner, where there is conflicting evidence, and, indeed, in most cases, to call witnesses to speak to his character.
Where it is a breach of duty, for instance, the former attention of the prisoner to his duty, it is important for him to establish to the sa
(31) It is necessary to enter the adjournment, to slow that the court did not sit beyond the hour legally authorized. The prisoner might adduce his evidence and address the court upon the whole evidence after having done so; but he must make his election, as he cannot be heard twice. During the interval of adjournment, the president makes a fair copy of the proceedings. (32) See more on this subject under genl. cis.-mar.
tisfaction of the court (witness called as above, &c.). This being fi. nished, the prosecutor may make his reply.
30. Reply of the Prosecutor.] If the prisoner has not adduced any evidence, it is not usual to make a reply, unless the prisoner shall bave himself, by his statement, impugned the testimony which he has not contradicted, or attempted to contradict, by the production of witnesses; in this case it is usual to reply; but as the court, who are to judge of the case, will see the force of this, they will probably intimate the thing to be unnecessary, and, in such case, the prosecutor should not insist. There is this to be said, the prisoner's statement is not upon oath, and that which has been sworn to, cannot be affected by a virulent attack made by one, who has not produced a single witness to rebut the charges exhibited against him,
Supposing no reply to be made, then the prisoner is remanded to his place of confinement, and the prosecutor and all others, not members of the court are directed to withdraw, and then :
31. The whole Proceedings are read over (33).] In ordinary cases, and where the proceedings are not voluminous and are fresh in the recol. lection of the members, it may not be necessary; the court are to satisfy their own minds and consciences-it is not enjoined ; and, in the courts of justice, juries frequently tell the judge that they do not require it. If not thought necessary, the court proceed to deliberate (34), with closed doors, and then :
32. Votes taken as to the Prisoner's Guilt or Innocence.] The president having ascertained that the members are prepared to give their votes, he puts the question to the youngest member first, and gives his own opinion last.
We will suppose there to be two articles of charge, then the question put will be—“ Ensign N. O. is the prisoner guilty or not guilty of the first article of charge" (minuting down on a sheet of paper yes or no, opposite to his name, and so with the rest of the members, &c.). Then, “Ensign N. O. is the prisoner guilty or not guilty of the second arti. cle of charge" (the same as before).
It is directed by the 11th art. see 14 (35), that the court “are to determine upon the sentence by the majority of voices," and so with respect to the finding of the court; for the sentence is frequently fixed by the articles of war, and, therefore, both are included in the words of the article.
33. Finding of the Court.] If three out of five members (or two but of three, if there be only three members), find the prisoner guilty of the first article of charge, the president records the same as follows,
« the (33) The prosecutor and spectators may be in court while they are read over.
(34) The various points and bearings of the evidence are discussed, but it would not appear to be proper that any one member should influence another, by giving an opinion beforehand.
(35) See p. 404.)
“ the court are of opinion that the prisoner is guilty of the first article of charge" (36).
And (if so) "the court are of opinion that the prisoner is not guilty of the second article of charge" (if the court find the prisoner guilty of both charges, then the wording should be, “the court are of opinion that the prisoner is guilty of both the charges exhibited against him). Then as to the sentence;
34. Sentence of the Court.] The court having found the prisoner guilty of one article of charge, suppose absence without leave, refer to the article (37), and the punishment to be awarded will be found to be discretionary; then, with respect to the discretionary punishment in general, which it is competent to a regtl. ct.-mar, to award, see p. 639. last para. (If the article, under which the crime falls, awards any specific punishment, the court have nothing to do but to pass sentence accordingly).
The votes as to punishment are taken upon the whole question, and not separately upon each article (38).
The president asks each member, as before, what the punishment (if discretionary) shall be, for it may be either imprisonment or corporal punishment. Suppose the latter, the president then writes down the vote of each member, thus (39), say: Ensign N. (...
150 lashes L. M.
200 ditto Lieut. J. K.
250 ditto President E. F..
300 (40) ditto
I am aware that in some regts. the practice has obtained of dividing by five, the number of members composing the court. The objection to such an arrangement is here urged upon legal grounds. The words of art. 11. sec. xiv. (41), are “10 determine upon the sentence by the
majority (36) The words, "the court having maturely," &c. are unnecessary, they are necessarily implied. pi (37) See art. 6, sec. vi, p. 169. The court may consult any of the awards found under any article to assist them.
(38) The lesser crime merges in the greater, and if the prisoner be found guilty on two articles, that to which the greatest punishment is attached, will be the punishment which is to be awarded. If one article should be absence without leave, the prisoner may be punished for a breach of that article; and if the second charge be for having lost his accoutrements, then under art. 3, sec. xi, p. 272, he will be put under stoppages.
(39). The system of each member writing down his vote, and doubling down the paper and passing it to the next officer, has been adopted in many cases.
(40) The punishment should not exceed 300 lashes. — (See p. 398, and para, 4.) (41) P. 404.