that if there is any doubt in their minds as to the credit due to the witnesses for the prosecution, then to let the prisoner have the full benefit of that doubt; and then concludes by referring to the testimony borne to the prisoner's character, which (if good) ought to have weight in their minds where they entertain any doubt, and which ought to be construed in his favour. But if, on the other hand, they entertain no reasonable doubt, and are of opinion that the crime is fully substantiated against the prisoner by the evidence, then to give their verdict accordingly (121). 51. The whole Proceedings read over, if the Court find it necessary, by the Judge Adv. gen.] It is not imperative on the court to do so, and it is frequently the case in courts of justice, that the jury inform the judge that they do not require it (See also No. 31 p. 934.) 52 Votes now taken as to the Prisoner's Guilt or Innocence.] The Judge Adv. gen. having ascertained that the president and members are prepared to give their votes, he puts the question to the youngest member first, and so on in succession; asking the president for his, last. Suppose there to be two articles of charge, then the question put will be: Q. Lieut O. is the prisoner guilty or not guilty of the first article of charge? (and so to the rest, ending with A., the president.) A. Guilty, or not guilty. Q. Lieut. O. is the prisoner guilty or not guilty of the second article of charge? (and so to the rest, &c.) A. Guilty, or not guilty. 1st Article of Charge. 2d Article of Charge. Lieut. Col. E.-Not Guilty. The (121) The summing up, I conceive, should not assume facts to be proved; that should be left to the court to decide upon. There is a duty to be performed; to show the relative bearing of the whole evidence, but no opinion should be given; which should only be given by the members, who have sworn to determine according to the evidence. The Judge Adv. gen. declares, after each article, that the court have found the prisoner guilty or not guilty. A majority of voices (122) determines the question, and in the above case, the court have found the prisoner guilty of the first, not guilty of the second article of charge. 53. Votes how taken, as to what shall be the Sentence (123).] The same manner may be observed, writing against each name, as before. The Judge Adv.gen. informs the court, that having found the prisoner guilty of the first charge, the next consideration is the punishment. Q. Lieut. O. having found the prisoner guilty, what punishment (if discretionary) shall he suffer. Suppose the members to sentence to corporal punishment, and :— In such a case, the punishment would be 500 lashes, and upon this principle. There is to be a majority, and Capt. J. must come into the majority in either case. The members from O. to K., in No. 2, will naturally (122) This is ordered at regtl. cts.-mar. (see art. 11, sec. xiv, p. 404), and it is the case at genl. cts.-mar., except where a sentence of death is awardable.—(See art. 6, sec. xiv, p. 376.) (123) If discretionary.—(See No. 9, p. 639.) Where the punishment is prescribed by any article, refer to it. If any capital crime, refer to them. In either of the two last cases, the Judge Adv.gen. would refer to the article and declare the punishment, and the sentence should be in the words of the article, or according to law. If to transportation, "to be transported as a felon for life, or term of years," simply. If a sentence of death (124), "to be shot to death" (if a mily, crime). If for a capital crime, under art. 4, sec. xxi, "to be hanged till he be dead." (124) In the case of a capital punishment, if the members who have voted death are in the minority, the next question must be, what punishment other than death shall the prisoner suffer. naturally side with J., in preference to forming a majority with the members A. to B., in the same scale, and this is the act of the majority on the side of mercy. The dividing by 15 is no act of the majority, and it is clearly giving a portion of a heavier punishment than any of the favourable majority have awarded, for of all the members in scale No. 2, from O. to J., not one has awarded 514 lashes (125), 54. Finding of the Court-Wording of] The court are of opinion that the prisoner is guilty of the first charge. Not guilty of the second charge. 55. Sentence of the Court-Wording of.] The court sentence the pri to receive 500 lashes on his bare back in the soner, private usual manner. [All members must vote some punishment, if only one lash, for as a majority find the prisoner guilty, the act of the majority decides as to some punishment, and the minority can, by their award, decrease the quantum-were they left out they would increase it.] Fort Wm. (Signed) A., Colonel and President. (Signed) P. Major, Judge Adv. gen., conducting the proceedings. "In all cases in which more prisoners than one are arraigned upon different charges, and tried by the same ct.-mar., the court is to be re-sworn, at the commencement of each trial, and the proceedings are to be made up separately, and signed, as if each prisoner had been tried by a distinct ct.-mar. (126). 56. Recommendation of the Prisoner by the Court.] Such of the members as see fit, recommend the prisoner to mercy, and sign their names, immediately under the sentence. - (See No. 37, p. 936.) 57. Proceedings laid before the Com. in Chief.] The Judge Adv.gen. lays the proceedings before the Com. in chief. 58. Revision of the Proceedings.] The proceedings can only be revised once. (See No. 39, p. 936.) 59. (125) If the court were reduced to 14 members, and seven voted 500, and seven members 600 lashes, the award should be 500 lashes, being the most favourable to the prisoner; dividing by 14 would give 550 lashes, and the dividing system will generally be found to be against the prisoner. The plan above given was a decision given on a reference made to the Marquess of Hastings, when Com. in chief in India. In questions before the twelve judges, if six are pro, and six con, no decision is given, but they may meet again and make a majority; and so one of the members giving 600 lashes, would probably drop 100 lashes in favour of the prisoner. Imprisonment.] Suppose seven vote imprisonment, and seven members corporal punishment (100 lashes have been esteemed equal to a week's confinement), here too the favourable side should be taken, which must depend upon the quantum of each; but if the majority decide upon corporal punishment, it must be awarded. Punishment generally.] Form a scale, placing the lowest at the top and the highest at the bottom. If a sentence of death, "to be shot to death" (if a mily. crime). If for a capital crime, under art. 4, sec. xxi, "to be hanged till he be dead." In the case of a capital punishment, if the members who have voted death, are in the minority, the next question will be," What punishment, other than death, shall the prisoner suffer ?” (126) Genl. Regns. and Orders, H. G., 1st Jan, 1822, p. 200 59. Execution of Sentence (127).]—(See sec. xiv, art. 9, p. 391.) 60. Execution of a Sentence of Death, Orders for.] Cawnpore Station Orders, Monday, 12th June, 1820. 1." Station Orders, Parole Calcutta. In pursuance of G. O., under date the 1st of June, and of instructions from H. E. the Com. in chief, the sentence of death passed on the prisoner, Private Samuel Hislop, of H. M.'s 11th dragoons, will be carried into execution in front of the Butt of H. M.'s 11th dragoons, to-morrow morning, at sun-rise. "The whole of the troops at Cawnpoor will parade at day-break, near the place of execution, drawn up three deep (the 11th dragoons dismounted, and forming three sides of a square, facing inwards in the following order: "H. M.'s 11th dragoons, its right flank near to, and in line with, the south end of the Butt. "The artillery, European and Native, including the lascar companies, immediately on the left of the dragoons. "H. M.'s 87th Foot will form the second side of the square, facing the Butt, its right forming an angle with the left of the artillery. "The third face of the square will be formed by "The left wing, 2d battn. 14th N. I., next to the 87th. "The 2d battn. 21st N. I., in the centre. "Capt. Craigie's levy on the left, its left resting near the north end of the Butt. "All guards to join, leaving sentries standing. And the Maj.gen. expects the several corps will, on this occasion, parade as strong as possible. "Sergt. Sam. Clark, H. M.'s 11th dragoons, is appointed to officiate as Provost-Marshal." 2. Procession of Troops to Place of Execution.] "An execution party to be furnished by H. M.'s 11th dragoons, consisting of a sergeant and 12 rank and file, will be in readiness to meet the prisoner, as he approaches the place of execution; the above party will be under the immediate direction of the Provost-Marshal, who will communicate the necessary orders to it, "An escort, consisting of a subaltern officer, two sergeants, two corporals, and 30 rank and file of H. M.'s 87th regt. will proceed to the main guard, at half-past three o'clock in the morning. "The prisoner will then have his fetters knocked off, his arms fastened behind him; and placed in a dooley, to be provided for that purpose, will be delivered over to the Provost-Marshal, who will convey him to the place of execution, accompanied by the escort abovementioned. "On coming to the square, the prisoner will quit his dooley; the procession (127) In the case of a woman sentenced to death, if she be pregnant-(See Pregnancy, Chap. XXIII, No. 76, p. 905.). procession will be formed, and will enter by the left flank of the infantry levy, in the following order: 1st. "The Provost-Marshal, on horseback. 2d." The band of H. M.'s 11th dragoons, drums muffled. 3d. "The execution party, in two divisions. 4th." Prisoner's coffin, borne on the shoulders of four men, from the 11th dragoons. 5th." The prisoner, accompanied by the Rev. Mr. Williams, with a private from the escort on each side of him. 6th." The escort, in two divisions. "The procession will move, in ordinary time, along the front of the whole, the music playing the Dead March, in Saul; and when the prisoner has taken up his station, the escort will retire, forming on the right of H. M.'s 11th dragoons, for which space will be allowed. The coffin carriers will also retire to their regt. "The crime, and sentence of the ct.-mar. on the prisoner, and the warrant for his execution, will then be read (128), after which the Provost-Marshal will proceed according to his instructions (129). "When the execution is finished, the troops will break into open columns of sub-divisions, right in front, and will march past the body in ordinary time. "And in making the next wheel, will move off to their respective quarters (130). "As (128) G. O. C. C. Madras, 23d June, 1813. By the Dep. Adv.gen.; a reasonable time being allowed for prayer: after which, the prisoner is to be placed on his knees with his eyes bound and facing the line. (129) G. O. C. C. Colombo, 11th July, 1814. 12 paces in front of the prisoner. The execution party to draw up The execution-party fire all at the same time, by word of command from the non. commissd. officer, and if the prisoner is not shot dead, the Provost-Marshal usually puts an end to his sufferings, by the discharge of his pistol. (130) It is the custom in the navy, after the execution has taken place, while the body is still hanging, to read the Art. of War under which the prisoner suffered, to every ship's company present, and immediately afterwards to read an admonition, prepared for the purpose, to the men, with such additional observations as the capts. may think proper, to impress strongly on the minds of the officers and all the crew, the necessity of a strict attention to discipline, and a perfect obedience to the laws (131). This practice would be of infinite service were it adopted in the army, and it is highly important that in all cases of a capital sentence being carried into execution, though the trial may have been held before the Supreme Court, that the prisoner should be sent to the station where his regt. is stationed, to be there executed in the presence of all the troops. If the sentence of death be commuted to transportation, the reason for the same should be explained to the men of the regt., to which the prisoner belonged: for which purpose the whole of the troops of the station should be paraded. (131) I think where there is a chaplain at the station, he should shortly address the troops on the occasion, and that it would also be advantageous that the sermon on the following Sunday should allude to the crime; for nothing should be omitted to make the execution as awfully impressive on the minds of the soldiers as possible. |