simply assists him in examining witnesses, raising objections, and in making his statement.

The questions to witnesses are written out by him, or by the accused, and handed to the judge-advocate, who asks them.

If the counsel desires to make an argument on any point it is submitted in writing, and may be read by him to the court, or by the accused, or judge-advocate. When a reporter is appointed, it is customary to allow the counsel to propound questions directly to the witnesses, and to make arguments as in civil trials.

Delays. The question of counsel having been settled, application for delay, if desired, should now properly be made. Applications for delay or postponement of trial must, when practicable, be made to the authority convening the court. When made to the court, it must be before plea, and will then, if in the opinion of the court well founded, be referred to the authority convening the court, to decide whether the court should be adjourned or dissolved, and the charges reserved for another court.1

Courts-martial are authorized, for reasonable cause, to grant continuances to either party, for such time and as often, as may appear to be just: provided, That if the prisoner be in close confinement, the trial shall not be delayed for a period longer than sixty days. Where the accused desires a delay to secure the attendance of absent witnesses, it is necessary that it distinctly appear on oath,3 1st, that the witness is material, and how; 2d, that the accused has used due diligence to procure his attendance; and 3d, that he has reasonable ground to believe, and does believe, that he will be able to procure such attendance within a reasonable time stated.*

1 Regulations, par. 886. 2 Article 93.

3 Regulations, par. 887

The judge-advocate is also required to take the same oath in the Articles recently proposed.

Court Sworn. If the trial is to proceed, the members and the judge-advocate of the court are then sworn.1

2

Should it appear from the charges that the statute of limitation is applicable to the offense, the judge-advocate should establish, if possible, before calling upon the accused to plead, the fact that he was not amenable to trial during that time.

Arraignment of Accused. The court being sworn, the judge-advocate reads the charges and specifications in their order to the accused (the accused standing) and then addresses him as follows:

You have heard the charge and specification preferred against you, how say you to the specification, guilty or not guilty?

How say you to the charge?

If there be more than one charge or specification, the arraignment is in the following order,-to the specifications to the first charge, then to the first charge, and so on through all the charges and specifications.

The accused may make any of the pleas spoken of in Chapter VII.

The general plea is "guilty," or "not guilty."

Guilty. If the plea is "guilty" it is a general rule of law that no testimony on the merits is to be introduced. In the case of Cadet C., the court refused to receive tes timony after plea of "guilty." The Attorney-General held that it is the duty of the court in all cases where the punishment of the offense charged is discretionary, and especially where the discretion includes a wide range and great variety of punishment, and the specifications do not show all the circumstances attending the offense, to receive such testimony as the judge-advocate may offer, for the purpose of illustrating the actual character of the

1 Vide Chapter VIII, on Oaths, p. 113-117. See Article 103.

offense, notwithstanding the party accused may have pleaded guilty.' If there be any exception to this remark, it is when the specification is so full and precise as to disclose all the circumstances of mitigation or aggravation which accompanied the offense; where that is the case, or where the punishment is fixed and no discretion is allowed, explanatory testimony cannot be needed."'

2

Upon this point the suggestion of the Judge-Advocate General, published in orders, is given: "As instances of bald and unsatisfactory records of trials not rarely occur in practice, a general order, it is suggested, might well be published, advising officers detailed upon courts-martial, that in all cases, whether of desertion, drunkenness on duty, or other offense committed either by officers or soldiers, where the plea is guilty and the specifications do not set forth in full detail the facts and circumstances of the offense charged, it is properly their duty, as well as their right, to require and receive evidence sufficient to inform the reviewing authority as to the degree of the criminality of the acts found to have been committed."

Not Guilty. If the plea is "not guilty," the trial proceeds. The judge-advocate may open the prosecution by a statement of the facts he intends proving, but this is not customary, and would rarely be done, except in very complicated cases where he specially desires the court to follow the evidence in its sequence.

He now calls his first witness for the prosecution, and, if there are persons present whom he has summoned as witnesses on either side, he requests them to retire.

Objection to witness. The accused, if he objects. to the witness on the ground of his incompetency, should

1 Opinion of the Atty-Gen., published in O. 32, A. G. O. April 22, 1834. G. C. M. O. 69, A. G. O. Oct. 29, 1877.

See also Chapter VII. p. 110.

now make his objection known, and, if he desires, may call witnesses to prove his incompetency.

In 1873 an officer asked to have summoned certain additional witnesses to impeach the credibility of three important witnesses for the prosecution, and was refused by the court. The Secretary of War disapproved their action and said: The case is deemed to present a fit occasion for reminding courts-martial that the least denial to an accused person of any proper facility or opportunity for defense, can serve only to defeat the ends of justice and may often lend impunity to guilt.'1

He may also ask to have the witness put on the voire dire, that he may examine him as to his competency. The same right is accorded the judge-advocate as to witnesses for the defense.

If the evidence subsequently given upon the matter in issue should prove the incompetency of the witness, on motion of the adverse party his testimony may be stricken out.

Oath. If no objection be made to the witness, or, being made, if his competency is established, the oath is then administered.3

The party producing now commences the direct examination.

All questions are recorded, and the answers in the words of the witness.

Objection to any question may be made by the court, or the adverse party. If of a minor nature, the court may determine upon it without being cleared. If a question is objected to, the reasons should be stated, and, together with the reply of the opposite party, should be recorded. The court is then cleared and the point decided by it.

1 G. C. M. O. 21, A. G. O. July 24, 1872.

2 G. C. M. O. 35, A. G. O. 1867. 3 Vide Chapter VIII. on Oaths, p. 119.

The court is then opened, the accused and counsel resume their seats, and the decision is announced by the judgeadvocate. If the question is rejected, it follows the rule as to all proceedings of a court; it should not be stricken from the record, except with the assent of both parties and permission of the court. The decision of the court should likewise appear on the record. "It is not usual nor would

it be right, to detail the grounds which might have led the court to the result finally adopted. The decision only of the court, both as to interlocutory and final judgments, is made known, but in no case the details of any discussion or the judgment of particular members." 1

When the majority of the members of a court-martial have come to a decision upon any question, raised in the course of the proceedings, no individual of the minority, whether the president or other member, is entitled to have his protest against the decision entered upon the record.

The judge-advocate should first prove the connection of the prisoner with the offense, and be careful to prove the fact that the person is amenable to military law; also the times and places set forth in the specification.

Cross-Examination. After the direct examination follows the cross-examination, followed by the re-examination, and, if desired, the re-cross-examination.3

Examination by Court. While the court, or any member with permission of the court, may ask questions of the witnesses at any time, it is deemed better to refrain from so doing until the judge-advocate and accused have finished. The court asks questions to clear up doubts or explain discrepancies.

A question put by a member, if objected to, but allowed to be asked by the court, should be recorded as

1 Simmons § 469, (6 Ed). 9 Opinions J. A. G. p. 302.

3 Vide Chapter XXV. p. 340–344.