the proceedings more clear than they would be, by mixing such matter with the body of the proceedings. 32. Proof of Hand-writing.] See No. 55, p. 894, Chap. XXIII. 33. Plans or Drawings when produced.] See Note 201, p. 51. 34. Prosecution declared to be closed.] Whenever the prosecutor has closed his case, he informs the court of the circumstance, the fact is recorded, and the prisoner is called upon for his defence. 35. Prisoner called upon for his Defence.] The prisoner is now called upon for his defence; and, if he is not prepared to enter upon it, he asks the indulgence of the court for a few days; in granting which, the court is guided by the length and importance of the proceedings (104). 36. Adjournment to enable the Prisoner to make his Defence.] The court having decided to adjourn, to enable the prisoner to prepare his defence, the same is recorded, and all parties informed when the court will meet again. 37. Adjournments generally.] A ct.-mar. must always adjourn at 4, p. m., except in the case specially provided for, forming a single exception to the rule (105). Cts.-mar. are in the habit of adjourning whenever they find it proper in their judgment to do so. The following observation, addressed to a jury by Lord C. J. Eyre, is very applicable to criminal cases: "Let a case arise in which it is manifest, that, if the cause goes on, without interruption or adjournment, it is utterly impossible that justice should be done. If it is likely to go into a length which will exhaust the human faculties, let them be as powerful and as strong as they may be, that neither the judge can preserve his faculties to conduct the trial, nor the jury can preserve that attention which is necessary to enable them to comprehend what the justice of the case is: what is it we should be doing, by going on with such a trial, but delivering over the life and honour of a prisoner, and delivering over the public justice of the country, to the accidental result of all that confusion with which such a case must go to the minds of a jury, when the trial is closed" (106) ?—(Record the adjournment.) 38. 2d Day's Proceedings-Court assembled pursuant to Adjournment.] The court having met pursuant to adjournment, the Judge Adv. gen. records (104) Lieut.gen. Whitelocke was allowed six days. See trial, p. 677. Sir J. Murray five days. See trial, p. 193. Col. Quentin four days. See trial, p. 120. Lieut.col. Johnston two days. See trial, p. 138. (106) On the trial of J. H. Tooke for High Treason, O. B. Nov. 1794.—(Howell's St. Tr., vol. 25, p. 129.) It is not, however, usual to adjourn in criminal cases. It has been done in several cases. Whenever a court adjourn, the members should be requested not to make what has occurred at the trial, the subject of conversation. The court will adjourn owing to the absence of a witness for the defence, when they will not for the prosecution; more indulgence being always shewn to the prisoner. The prosecutor is presumed to be ready by the day of trial with all his witnesses.—(Col. Quentin's trial, p. 35.) records the fact, and states, that the president and members are all present, as on the former day, The prisoner is again brought into court, and placed, as before, opposite to the president. He is now called upon for his defence. 39. Prisoner put upon his Defence.] The prisoner may make his election, either to address any thing he may have to offer, or read any written statement, and then call and examine his witnesses; or he may first examine his witnesses, and then address the court; or read his defence, and remark upon the evidence given against him. The usual course at cts.-mar., is, for the prisoner to read his defence first, and then call his witnesses. If the prisoner has a written defence, which is the usual custom, he must either read it himself, or get some friend to read it; but bis counsel (if he shall have employed any) cannot read it for him (107). If there be no friend of his in court, and he is unable to read it himself, owing to indisposition or agitation of mind, it is the practice for the Judge Adv. gen., in such case, to read it (108). The prisoner's defence ought to be confined to any statement of his own case, which he may think it advisable to offer to the court, in contradiction to what has been stated by the prosecutor in his opening address, and to observations upon evidence which has been given against him, and to the offering any remarks upon any written evidence which may have been introduced, in the course of that evidence. He is likewise at full liberty to remark upon the nature of the evidence given on the part of the prosecution, and to show, if he can, where there is any contradictory evidence, and to impugn the credit of the witnesses that have been examined-to observe upon the non-production of witnesses who could have better informed the court-to urge the improbability that he should have acted in the manner imputed to him; and to urge all these circumstances in respectful language and manner, to the kind consideration of the court: and if there have been any hostile feelings expressed by the prosecutor towards him, in remarking upon such a circumstance, or as to the motives of the prosecutor, it should be done in a manner that shall not be disrespectful to the court. The court have an undoubted right to prevent a prisoner's defence being made the vehicle of attack upon the characters of third persons, or those not concerned in the proceedings before the court in any character. It is a difficult and delicate task for a court to stop a prisoner in his defence, unless he urges matter totally irrelevant to the charge, or which is disrespectful in its language, tone, or manner. With respect to irrelevant matter, the court are bound in duty to reject it, unless the legitimate object be to show, and the prisoner declares his intention of adducing proofs, that it relates to collateral (107) Lieut.-gen. Whitelocke's Trial, p. 763. facts facts which are necessary to be given in evidence, to prove his innocence, or clear his character from the imputation which may have been cast upon it, or where he thinks it is affected. The introduction of new evidence, as it always enlarges the view of the case, so it, as a natural consequence, increases the bulk of the proceedings; and if one party be allowed to introduce it, the other becomes entitled to cross-examine into it, and thus the business of the court is multiplied to a great extent, and the labours of the court may be much increased beyond the legitimate object of their inquiry. Cases may arise to warrant the introduction of such evidence; but if a soldier commit an act of mutiny or desertion, there is nothing which he can give in evidence, that can justify the act (109). Where the prisoner's defence is likely to hurt his case, it is the custom of cts.-martial to recommend him to leave out objectionable passages in acceding to their recommendation, he is more likely to benefit himself, than by persisting in retaining them; and a court will never recommend his expunging any material portions of it, though it may be devious in its course, and though more than was necessary may be introduced. Where a prisoner, regardless of the admonition of the court, and of their recommendation to expunge offensive and objectionable matter from his defence, in which he reflected upon the character of a third person, persisted in his course, the Comr.-in-chief directed charges to be exhibited against him, and he was sentenced to be discharged the service (110). Where a defence contains scurrilous and indecent matter, the court possess the undoubted right to refuse to record such parts; and, indeed, if they did not possess such power, the proceedings of a court might contain the whole private scandal which may have been directed against private individuals, quite unconnected with the proceedings. This exercise of a court's right will be duly appreciated, when the practice is general, and not confined to individual cases-whether it be a general or a private soldier; for courts of justice have a more solemn and higher duty than considerations of private feelings: and not only this, the non-exercise of this right, may, sometimes, lead to other proceedings; while it is clear, that what is said in an address will have but little weight upon sensible minds, unless it be followed up by proofs. Failing in this latter and necessary ingredient, it frequently does more harm than good; for it may evince feelings and motives, which the evidence of the party ought to be calculated to show never existed (109) In cases of libel, if it be an action for damages, the deft. may plead a justification; but if it be a criminal information, he cannot plead such a justification. The distinction between the two cases is this. In the latter, a breach of the peace may arise from the act; but in the former, if he is aggrieved by the pltff., he has his remedy by a civil action. (110) Sce case 4, p. 523, and caso 5, p. 455. isted (111): and it should be recollected, that what the court have to decide upon, is the evidence before them (112). 40. 1st Witness for the Defence examined in Chief by the Prisoner. The prisoner now calls his witnesses, and examines them in chief. (See No. 20). 41. 1st Witness for the Defence cross-examined by the Prosecutor.) See No. 21. 42. 1st Witness for the Defence cross-examined by the Judge Adv. gen. 43. 1st Witness for the Defence examined by the Court.] See No. 22. 44. 1st Witness for the Defence re-examined by the Prisoner.] See No. 28. (Record witness retires.) 45. 2d Witness for the Defence examined in Chief by the Prisoner.] As above, and all the other incidents of the trial, as on the prosecution. (See preceding Nos.) 46. Credit of the Witnesses for the Prosecution impeached by the Prisoner.] See No. 107, p. 916, Chap. XXIII. 47. Witnesses as to the Prisoner's general Character.] See No. 10, p. 877, Chap. XXIII. 48. Reply by the Judge Adv. gen., or Prosecutor.] The right of reply is recognized by cts.-mar. (113), and time is allowed to prepare it where the proceedings are voluminous (114). In a case where no witnesses had been examined by the deft., Lord Mansfield said, "As Atty. gen., he might reply, notwithstanding the deft. had not examined any witnesses; that the Solr. gen. indeed, or any other counsel, could not; but that the Atty. gen. might" (115). The Juge Adv. gen. also possesses the same right at genl. cts.mar (116). With (111) Whenever a prisoner consults another upon the subject of his defence, it may be advantageous to show it to some perfectly disinterested party, for the feelings of the friend when warmly called into action, let the abilities of the party be ever so great, are apt to enter into the spirit of party feeling. (112) See the members oath, No. 1, art. 4, sec. xiv, p. 372. (113) Though not allowed of in the navy.-(See M'Arthur, vol. ii, p. 184.) (114) On Lieut.-gen. Whitelocke's Trial, the Judge Adv.-gen, observed, “That though the unprecedented length of the defence, might, perhaps, entitle me to claim some time for consideration on the arguments adduced, yet I am desirous of waving any claim I might have of that kind, from the anxiety I feel that any observations which I may have to make on that defence, may be made while it is yet fresh in your recollection."-(Printed Trial, p. 793.) (115) The Att.-gen. on the trial of Woodfall, on an er offició information, filed by the Att.-gen. (Howell's St. Tr., vol. xx, p. 900.) Where the prisoner only called witnesses as to character, Lord Ellenborough said, "I think the Att.-gen, has a right to reply, if he chooses to exercise his privilege.”—(See the trial of E. A. Drsper, Esq., on an information for publishing a libel. Howell's St. Tr., vol. xxx, p. 1019.) (116) Ext. letter from R. Spankie, Esq., (now Sergt.) Adv.-gen., Calcutta, to the Most Noble the Marquess of Hastings, dated Nov. 3, 1822, referring to the case of Lieut.-col. Robinson (see case 3, p. 66), "I think that in a mode of proceeding, where With respect to a private prosecutor, it rests with the court whether or not they will allow a reply to be made (117). The usual rule is, to allow it, if new evidence has been introduced on the defence, or where the deft. may not have given any evidence of any description, if he has in his address or written defence, impugned the credit, or attacked the character of the prosecutor or his witnesses. 49. Rejoinder allowed to the Prisoner, if the Prosecutor introduces new Evidence in reply.] "Some doubts have arisen as to a prisoner's having a right to rejoin to the reply of the prosecutor; this mistake, however, is probably grounded on the supposition of a case which rarely happens, of a prosecutor being permitted to introduce new evidence in his reply, in which case the, prisoner is entitled to be heard upon such new evidence; and the prosecutor will be entitled to a reply to the same extent. If the prosecutor, in his reply, introduces perfectly new matter (which in strictness is irregular) without calling evidence, it is but fair, either that the court should stop the prosecutor from going into such new matter, or if he is permited to go on, to hear the prisoner afterwards in reply to such new matter" (118). 50. Summing up of the Evidence by Judge Adv. gen. or Prosecutor.] In complicated cases, in circumstantial proofs, in cases where the evidence is contradictory, or in trials where a number of prisoners are jointly arraigned, as on charges of mutiny and the like, it is expedient that the Judge Advocate should arrange (119) and methodise the body of the evidence, applying it distinctly to the facts of the charge, and bringing home to each prisoner, where there are more than one, the result of the proof against him, balanced with the evidence of exculpation or alleviation; in ordinary cases, a charge of this kind from the Judge Advocate is not so necessary" (120). Whenever the Judge Adv. gen. executes this duty, the course to be adopted should be similar to the course pursued by a judge in his address to a jury. The judge recapitulates the evidence to the jury, remarking upon such facts as bear upon the case, pointing out the applicability of the different parts to the whole, and when he comes to the defence, he gives due weight to the evidence for the prisoner, and tells the jury, that where there is no other officer to represent the crown, like the Att.-gen., the Judge Adv.-gen., in public prosecutions particularly, as this at Bombay is, may be considered as prosecuting, not only in the name, but on behalf of the crown, as the Att.gen. does in state prosecutions, and entitled to the privileges of the Att.-gen. in reply, if by law such privilege did not, as I think it did, originally extend to prosecutors generally, though in practice modified in the courts of law, and reduced to a matter of discretion in the court to allow it or not. I cannot conceive, however, that by any similar usage in cts.-mar., or by the particular circumstances of the case, the court was justifiable in refusing to allow the Judge Adv. to reply."—(Kennedy on Court's-martial, p. 317.) (117) See note 116. (118) Sir C. Morgan (late Judge Adv. gen.).-(Note to Tytler, p. 257.) (119) Genl. cts.-mar. frequently adjourn for this purpose. (120) Tytler, p. 310. |