authenticated, may be read in evidence before such court in cases not capital.1

Three things are necessary that a deposition may be read in evidence before a court-martial:

1st. The party must reside beyond the State, Territory or district where the court may be sitting.

If, however, the opposite party will consent, the depositions of witnesses residing within the State, Territory or district may be taken. This might be necessary where a person is unable from sickness to attend the court, or where a party intends leaving the country.

2d. Reasonable notice must be given to the opposite party.

What will constitute such notice is a matter for the court to determine. In civil cases before the United States courts the notice must be sufficient to allow the opposite party to be present at the taking of the deposition; allowing time after the service of the notification, not less than at the rate of one day (Sundays exclusive), for every twenty miles of travel. The notice to the opposite party must state the name of the witness, and the time and place of the taking of his deposition.*

3d. The deposition must be duly authenticated.

6

The old Article indicated justices of the peace as the proper officers before whom depositions were to be taken; and an Act of 1863 directed that any officer authorized to take depositions by the laws of the State, district or Territory in which the witness is examined, may take a deposition to be used in evidence before a military court. The present article, though framed from the act of 1863, fails to state by whom a deposition must be authenticated.

1 Article 91.

2 See I. Opinions Attorney General, March 15, 1825. & Greenleaf on Evidence, Vol. I. § 322. 4 Revised Statutes, § 863.

We find, however, that the Revised Statutes provide for the taking of depositions de bene esse in civil cases, and authorize the depositions to be taken before any judge of any court of the United States, or any commissioner of a circuit, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the cause.

A deposition authenticated by any of these persons would doubtless be accepted by any military court.

In general, the examination of a witness is made by interrogatories and cross-interrogatories previously prepared, and sent by the judge-advocate to the magistrate who is to take the deposition.

Every party deposing in civil cases is required to be cautioned, and sworn to testify the whole truth, and carefully examined. His testimony must be reduced to writing by the magistrate taking the deposition, or by himself in the magistrate's presence, and by no other person, and must, after it has been reduced to writing, be subscribed by the deponent.1

1 Rev. Stat. § 864.

CHAPTER IX.

TRIAL.

THE hour having arrived at which the court is ordered to convene, the members take their seats in the order of their rank the president sitting at the head of the table, and the other officers on his right and left alternately according to rank. The decision of the proper authority in regard to the rank of the members cannot be reversed by the court. The judge-advocate sits at the foot of the table. A table and chairs are provided for the accused and his counsel to the right of the judge-advocate, and a chair for the witnesses at the judge-advocate's left.

When ready to proceed the president calls the court to order; the judge-advocate then calls the names of the members, noting the absentees. (The cause of absence of any member should be ascertained by the judge-advocate; and where reasons are submitted in writing, they should be appended to the record properly referenced.)

If there are more than five members present the court generally proceeds with the trial. It may, however, delay or adjourn to await the attendance of absent members.

1

It would be well at this time for courts-martial to read over the charges, and the order convening the court, to see if they are legally convened, and whether they have jurisdiction of the offender and the offense. This is not generally done, however, but if any doubt exists in the

1 Regulations, par. 884.

minds of members, or the judge-advocate, now is the proper time to decide upon it.

A court-martial, except when cleared for deliberation, is always open to the public during a trial.

Reading Order. The accused then comes before the court, and, standing, is cautioned by the judge-advocate to listen to the order convening the court, which the latter then reads to him, and asks him if he has any objection to being tried by any member present named in the order.

The rules laid down in Chapter VII. should be followed in deciding upon challenges.

Counsel.

When the challenges, if any, are decided upon, the judge-advocate should ask the accused if he desires to introduce counsel. He may make such application at any stage of the trial, and sometimes this will be necessary to enable him to conduct the examination of a member on the voire dire.

The accused is entitled to counsel upon his trial as a right, and this right the court cannot properly refuse to admit. Wherever it is refused and it appears that the accused could have procured counsel within a reasonable time, if proper facilities had been afforded him, the proceedings should be disapproved.1

This privilege being acknowledged, the court should not refuse an application for postponement, to secure counsel, unless it appears that the continuance will result in an unreasonable delay, prejudicial to the interests of the service. Any person of good standing, civil or military, may be admitted to act as counsel, but a court-martial has the same right as a civil court to refuse to admit an improper person. A court must be governed by the particular circumstances of each case, and where it refuses to allow a particular person to act as counsel, or to post1 Opinions J. A. G., p. 127. 2 Ibid, p. 284.

pone its proceedings to afford opportunity for securing counsel, the re viewing authority will have to judge as to whether such action was sufficiently injurious to the accused to require disapproval of the proceedings.

A court has no right to relieve a member to act as counsel, it belonging exclusively to the appointing power to fix the number of members of the court.1

Persons having an interest in the trial cannot insist upon being admitted to act as counsel, or have others do this in their behalf. This was exemplified in the trial of Commander Mackenzie, U. S. N., in 1843, who was charged with "murder on board a U. S. vessel on the high seas." On the third day of the trial the judge-advocate presented a paper signed by two eminent legal gentlemen, stating that" they had been employed by the relatives of Midshipman Philip Spencer, one of the persons for the murder of whom Commander Mackenzie was then upon trial, to attend the trial and take part therein, by examining and cross-examining the witnesses who might be produced, and propounding such questions, and offering such suggestions in relation to the proceedings, and presenting such comments on the testimony, when the same shall be concluded (under the approbation of the court) as they might deem necessary." The court, after mature consideration, decided that the application could not be granted.2

Counsel to assist Judge-Advocate, Counsel may be assigned to assist the judge-advocate. Should a judgeadvocate, in an important and complicated case, feel the need of such assistance, the course spoken of in Chapter XXII. should be pursued.

Privileges of Counsel.

The counsel for the accused

1 G. C. M. O. 62, A. G. O. Aug. 10, 1874.

* Trial by J. F. Cooper, pp. 8, 9, De Hart, p. 318.