"question by the court;" if rejected, as "question by member."

The decision of the court is final as to what questions may be put, and no one, whether member, judge-advocate, or accused, can insist upon a question being asked.

It often happens that the judge-advocate or the accused has omitted to ask a question which they desire to be put. Such question should be submitted to the court, and is, as a rule, permitted, being entered on the record as a question "by the court."

Reading over Testimony. When the witness has given his testimony in full, before dismissal from the stand, the judge-advocate should read it over to him, and notify him, that if he wishes to make any corrections in it, he will be allowed to do so. It should not be read to him, wholly or in part, before he is cross-examined.

Witnesses may be recalled by the court at any stage of the proceedings, for such examination as it may deem necessary, or they may return of their own accord, and, with permission of the court, (which should be granted) correct any portions of their testimony. If the correction is material to the issue, it would be proper to leave the testimony on the record as it originally was given, and note the correction; this for the benefit of the reviewing authority. When a witness comes the second time on the same trial before a court to testify, he need not be resworn, although he should be cautioned that in testifying he is still on oath.

The judge-advocate calls all the witnesses desired for the prosecution, and their testimony being finished, announces that he here rests the prosecution.

The witnesses for the defense are then called and examined in the same manner as has been described, the accused commencing the direct examination; the ques

tions of the accused being put through the judge-advocate and the answers recorded by him.

The accused has a right to call all necessary witnesses whose testimony will assist his defense, and the court should allow him considerable latitude in questioning witnesses; but as it frequently happens, especially with soldiers, that the accused desires to call unnecessary witnesses, the court will exercise its discretion in allowing such action, being careful, however, to do nothing which will prejudice his case. The accused has a right to call witnesses as to character, and it is often for his advantage to do so.1

After the examination of the witnesses for the defense the judge-advocate may, if he see fit, summon new witnesses, or recall any of the previous witnesses to rebut the testimony elicited in the defense, and the accused may in such event establish the fact in issue by new witnesses.

Originating Evidence, Some question has arisen as to the power of a court-martial to originate evidence; that is, to call witnesses not called by either party. While this places a court-martial somewhat in the light of a prosecutor, yet there may be points which the court desires to have cleared up, and the Judge-Advocate General says that it is authorized to call before it to give testimony, witnesses whom neither the prosecution nor the defense have summoned, and this even after both have closed their case."

Simmons says, "The custom of service would justify the calling as a witness any individual alluded to in the evidence before the court, who may be at hand, and whose examination might afford a probability of elucidating a special point which may be dubious, but it is apprehended that this is the utmost extent to which a court would be

1 Chapter XXIV., p. 314. 2 Opinions J. A. G., p. 128.

authorized to go. A court-martial might involve itself in an inextricable labyrinth, were it to stay proceedings and adjourn in order to obtain testimony." De Hart and Benét cite the views of Simmons, and maintain that a court can originate evidence only to the extent stated by him."

Sick or Absent. If the court desires to hear the testimony of a sick or absent witness, it may adjourn to such time as his presence may be secured, subject, in case of unreasonable adjournment, to being reconvened by the reviewing authority. Where the witness is sick at the post where the court is sitting, it may adjourn to his quarters, and take the testimony. In such case, the accused and his counsel should be allowed to be present to cross-examine, and exercise the rights accorded them by law. The established rule of law is that a court-martial cannot receive testimony against an accused except in his presence. This, however, is a personal privilege which he may waive."

Courts-martial will necessarily often be called upon to decide points affecting the rights and privileges of the accused in his defense, and in this connection may well be read the remarks of the Secretary of War in a recent order," Courts-martial had much better err on the side of liberality towards a prisoner than by endeavoring to solve nice and technical refinements of the laws of evidence, assume the risk of injuriously denying him proper latitude for defense."

1 Simmons, p. 413 (2d Ed.) § 948 (6th Ed.)

P. 357. Kennedy (p. 141) same view.

? P. 85.

4 A court-martial is authorized of its own motion, and at any stage of the proceedings, to summon any witness whose testimony appears material to the case on trial, in the Articles recently proposed.

I. Opinions Attorney-General, March 15, 1825.

6 G. C. M. O. 32, A. G. O. Oct. 31, 1872.

Statement. After the examination of the witnesses for the defense, the accused has a right to make a statement; and for this purpose the court should allow him sufficient delay for preparing it.

The following remarks from the War Department in reference to the statement of an accused, should be borne in mind by the members of courts-martial, and by parties. being tried:"Great latitude is undoubtedly always allowed to an accused in offering his defense. Any argument fairly deducible from the evidence tending to show malice in the prosecution, or to impeach the credit of witnesses may be advanced; but this privilege ought not to be abused, so as to make an argument the vehicle of satire and personal ridicule, and convert a means of defense into a weapon of attack." In this particular case the Secretary said, referring to the defense,-"A document characterized by so many personalities, and such unbecoming levity of style, would barely be tolerated in any civil court, and is still less admissible in a court-martial, and towards a person standing in the relation in which Col. G. stood towards the accused, and the court would have been justified in refusing to receive it." 1

A party may be tried by a court-martial for language used in a written defense before another court.2

"It is competent for a court-martial to caution the prisoner as he proceeds, if they should think proper, and to state to him that, in their opinion, such a line of defense as he may be pursuing, would probably not weigh with them, or operate in his favor; but to decide against hearing him state arguments which, notwithstanding such caution, he might persist in putting forward as grounds of justification or extenuation, such arguments not being

G. O. 16, A. G. O. March 27, 1851.

2 G. O. 2, A. G. O. Jan. 15, 1856. G. O. 25, A. G. O. Dec. 8, 1859.

illegal in themselves, is going beyond what any count would be warranted in doing."

1

Value of Statement. The exact value of a statement cannot be defined in law, but must depend upon the particular case, and the character of the party making it. Not being stated under the sanction of an oath, great temptation is offered to state facts absolutely false, or at least to give erroneous impressions of, or interpretations to facts. On the other hand proper consideration should be given to a statement.

The judge-advocate may, if he thinks proper, call witnesses to rebut statements made in the defense, with power in the accused of cross-examining, and calling witnesses to prove the truth of his statements.

The defense of the accused is usually read to the court by himself, but may be read by the judge-advocate, and, unless the court objects, by the counsel for the accused. Simmons cites a case where the counsel was not permitted to read the defense as being contrary to precedent. Such rule does not obtain in this country, and, in cases where there is a reporter, courts-martial frequently allow the counsel to make the defense in the form of an address to the court.

Reply of Judge-Advocate. The judge-advocate has the right of reply, or he may submit the case without remark. The latter is the common custom, except in complicated cases. The court should grant time to the judgeadvocate for preparing a defense, if he so desires it.

A reply is, or ought to be, a commentary on the evidence introduced by the prisoner, and on remarks made by him in enforcing that evidence, or in arraigning the

1 Letter from the English Judge-Advocate General to the Deputy JudgeAdvocate in Lieut. Dawson's trial, cited by Simmons, p. 196 (2d Ed). 2 Simmons § 586, (6th Edition).