The facts by which the imputation is to be supported, should likewise be stated on a charge against a Non-commissioned Officer, or Soldier, for disgraceful conduct. Perfect analogy exists between the offence of scandalous and infamous conduct in an officer, and disgraceful and vicious conduct in a soldier; and the orders which have, from time to time, appeared respecting the charge for one offence, may legitimately be referred to, when considering that of the other.* On Courts Martial a prisoner charged with desertion, may be found guilty of absenting himself without leave; for absence is the principal matter in issue, the motive and design being concomitants. So also on the trial of an officer charged with the commission of acts, on which is grounded the imputation of behaving in a scandalous, infamous manner, unbecoming the character of an officer and a gentleman, the Court may absolve the prisoner of the degree of guilt charged, and negative the imputation; but finding the facts proved, if constituting a disorder, or neglect, to the prejudice of good order and military discipline, may yet award punishment proportioned to the military offence, and differing from that prescribed positively as the penalty of the 31st Article of War; provided every instance where such minor degree of guilt is found by the Court, that the breach of the said Article of War, which peremptorily declares the penalty of scandalous and infamous conduct, be not expressly and exclusively laid in the charge. A soldier, charged with disgraceful conduct in * Simmons. may in like manner be acquitted of the imputation; and if found guilty of the facts charged, such being to the prejudice of good order and military discipline, may be punished accordingly.* In Civil Courts it is sufficient to prove the substance of the issue, and therefore with Military Courts it is not held necessary to prove the time precisely as laid, unless that particular time be material. The 7 Geo. 4. c. 64, sec. 20, declares that no judgment, or any indictment, or information, for any felony or misdemeanour, shall be stayed, or reversed, for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence; nor for stating the time imperfectly; nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or exhibiting the information; or on an impossible day, or on a day that never happened.t * The mistake of the place, in which an offence is charged to have been perpetrated, is not conclusive, if the fact be proved at some other place within the precincts of the command of the officer convening the Court Martial. This is in perfect unison with the customs of common Criminal Courts.* In all matters touching the trial of crimes by Courts Martial, wherever the Military Law is silent, the rules of the Common Law of the land, to the benefit of which * Simmons. † Phillips. D all British subjects are entitled for the protection of life and liberty, must of necessity be resorted to; and every material deviation from these rules, unless warranted by some express enactment of the military code, is in fact a punishable offence in the members of a Court Martial, who may be indicted for the same in the Queen's ordinary Courts.* All the charges brought forward against a prisoner must be exhausted, and members must declare their opinion on each particular allegation contained therein.f Vide" OPINIONS OF JUDGE ADVOCATES GENERAL. Charges." * Tytler. Kennedy. DEFENCE. Previous to making his defence the prisoner may, if he thinks proper, bring forward and examine his witnesses, or he may defer doing so until after he has made his defence. If a prisoner calls witnesses in support of his defence, the Judge Advocate, or the Prosecutor, has a right to cross examine them. Should the prisoner in his defence have impeached the credibility of any of the witnesses of the prosecution, it is competent for the prosecutor to re-establish their character by new evidence; or, if any new matter has been introduced, the Judge Advocate is allowed to reply to the defence of the prisoner, and the prosecutor has the right of controverting it by evidence.* † The Court has a right to interfere in a prisoner's defence, where the style is intemperate, where third persons, not connected with the trial, are attacked, or where new matter may be introduced. The Court should refuse to record any objectionable expressions, or may recommend the prisoner to have the parts expunged which are disapproved, but if he object to do so, then they may order them to be struck out.† Alibi (or elsewhere). This term is used to express that defence in a criminal prosecution, where the party accused, in order to prove that he could not have committed the crime charged against him, offers evidence that he was in a different place at the time.‡ An alibi is the best of all defence if a man is innocer *Adye. Hough. Tomline. |