CHARGE.

In writing the Charge for a Court Martial the name should be at full length, the dates in words, not in figures; and if the offence be done in the night before midnight, it is understood to be done in the first day, and if it happen after midnight, then in the subsequent day.*

An Indictment would however be fully supported, if the Offence were proved to have been perpetrated any time before daylight of the morning succeeding the night in which the Crime was stated to have been committed.†

It is an undoubted right, and even the duty of every Court Martial, to reject any illegal or erroneous Charge, before the arraignment of the Prisoner. The Court must in this case adjourn, and through the President report the proceeding to the Officer by whom the Court was convened.t

A Prisoner being once arraigned, no alteration should be permitted to be made in the Charge, except as may regard a Plea of Abatement for a Misnomer, or wrong addition. It is declared by an Act of Parliament "that no Indictment shall be abated by reason of any dilatory Plea of Misnomer, or of want of addition, or of wrong addition of the party offering such Plea, if the Court shall be satisfied by affidavit or otherwise of the truth of such Plea; but in such case, the Court shall forthwith cause the Indictment, or Information to be amended according to the truth, and

*Simmons. + Coulthurst. Kennedy.

shall call upon such party to plead thereto, and shall proceed as if no such dilatory Plea had been adduced."*

There is no occasion to specify in the Charge that the offence has been committed in breach of any particular Article of War. But if the Prosecutor wish to bring it under some specific article, in order that the Prisoner may suffer the penalty therein prescribed, he must in his Charge make use of the same words, to describe the offence, as are employed in that particular article.†

An additional Charge cannot be preferred against a Prisoner subsequent to the swearing of the Court and the arraignment, either as referring to the Charges in issue, or to a distinct offence.*

Facts of a distinct nature should not be included in one and the same Charge, but each different fact should be specified in a distinct Charge.

All extraneous matter should be carefully avoided, and nothing but what is culpable, should be alleged, and which the Complainant is prepared to substantiate before a Court Martial.f

The Prisoner should be made acquainted with the Charge, about to be preferred against him, at least the day previous to the assembly of the Court; should this, however, be inadvertently omitted, such omission, or any Simmons. † Kennedy.

difference, which may exist between the Charge on which he is arraigned and the copy furnished to him, cannot be pleaded by him in bar of trial, but may be mentioned as sufficient grounds for requesting from the Court a longer time for the preparation of his defence. Charges may be framed, and altered in such way as the order the trial may think best, both in regard to the substance as in other respects, antecedent to arraignment; excepting when the charges are embodied in the warrant for holding the Court Martial; in which case they cannot be altered after the warrant is signed.

officer who is to

The established custom of reading over the charge to every witness at Military Courts, as soon as he is sworn, and before the commencement of his examination, is, generally speaking, objectionable, and is in direct variance with the better practice of the civil courts. To preserve a witness untutored by either of the parties in the cause is a constant and praiseworthy endeavour of the laws, and the less premeditated his answers are the better.*

Moreover, should the reading of the charge instruct the witness how to answer, that is, should it have the effect of a leading question on the examination, (as, for example, when on a trial for disrespectful or insulting language or gestures, &c., the prisoner may be charged with the utterance of particular expressions, the precise words. being specified), in such cases the prisoner may reasonably object to their enunciation.†

* Sullivan. Hough. Hough. Kennedy. Sullivan. Simmons.

The powers of a General Court Martial are various and extensive, both as to the nature of the crimes of which they may take cognizance, and of the punishments which it is in their power to award. There are, however, offences which admit of no precise definition, but which in the military profession are of paramount importance to the well being of the army, as tending to weaken and subvert the principle of honor, on which the discipline and organization of troops must materially depend. Of these offences Courts Martial are appointed the sole judges, or rather the legislators, for they not only are called upon to define the crime, but also to award the punishment; as in the case of an officer being tried "for behaving in a scandalous, infamous manner, unbecoming the character of an officer, and a gentleman." For the conviction of this serious offence, it is, however, required "that in every such charge preferred against an officer for such scandalous and unbecoming behaviour, the fact, or facts, whereon the same is grounded, shall be clearly specified."*

When an officer is brought to trial "for behaving in a scandalous, infamous manner, such as is unbecoming the character of an officer and a gentleman," the Court must must find him either "Guilty," or "Not Guilty," of the charge; for these words constitute but one single offence; and it is therefore not competent for the Court to divide them, and to declare the prisoner guilty to a certain extent only.†

Tytler. Kennedy.