testimony offered in support of the prosecution. No new matter ought to be introduced at this stage of the trial, without the special leave of the court; and then it should be supported by witnesses, and the prisoner should be allowed to rejoin, and remark upon such new matter. Especially the prosecutor ought not to be permitted, under color of replying to the prisoner's defense, to give additional testimony at this stage of the trial, and, by a statement of facts, made when the prisoner has not the opportunity of cross-interrogating him, and which he has not made when he was sworn as a witness, to attempt to explain or contradict what has previously been given in evidence. Hough denounces such a course as irregular ; but if it is pursued, he says, it is but fair, either that the court should stop the prosecution from going into such new matter, or, if he be permitted to go on, to hear the prisoner afterwards in reply to such new matter.

In the case of Capt. H., the judge-advocate applied to be heard by the court in an argument that he proposed to present, and this request was denied by the court, on the ground that the accused had interposed no address on his part. The action thus taken was disapproved, it being held that the judge-advocate of a courtmartial has an undoubted right at the close of a trial, to address the court for the purpose of commenting on the whole evidence and the law applicable to it; and that this right is in no degree abridged by a waiver on the part of the accused of his like privilege.1

Where an accused pleads "guilty," he has still the right of calling witnesses in extenuation of the offense, or witnesses as to character, and also to make a statement to the court.

Adjournment. If an adjournment has taken place

1 G. C. M. O. 11, A. G. O. May 1, 1872.

during the case until another day, the members resume their seats at the appointed time, and the judge-advocate notes the names of those present and absent as before indicated.

The accused and his counsel are called before the court, and the proceedings of the preceding day verified, corrected and approved. The trial then commences at the point where it had been left off on the preceding day.

Regimental Court for doing Justice-Mode of Procedure. When a court is convened under the 30th Article of War, the mode of procedure differs somewhat from that of the ordinary court-martial.

Both parties furnish the judge-advocate a list of witnesses, who are summoned by him as in any court. Both are allowed the right of challenge. After the court is sworn, the complainant states his grievance, and calls any desired witnesses to support it. The officer complained of may then call his witnesses, and make a statement, if he desires. The court may ask such questions of the witnesses as it desires, and the rules as to crossexamination and re-examination, are the same as in any court. Either party may be sworn. After all the evidence is presented and statements made, the court is then closed and an opinion rendered. In their opinion, if the court finds the injury complained of established, they should point out the mode of redress. The proceedings should then be forwarded to the regimental commander for approval.

Either party may appeal from the decision of this court to a general court-martial. In such cases the mode parties furnish a list of

of procedure is as follows: Both witnesses to the judge-advocate. The right of challenge is afforded to both parties (to the appellant first). After the court is sworn the appellant states his grievance, and

calls any desired witnesses to substantiate it, after which the other party produces his witnesses, and makes any desired statement. Either party may be sworn. The court is then closed for deliberation.

In giving an opinion, the court should simply state whether appellant has substantiated his grievance or not. If the court deems the appeal groundless and vexatious, the party appealing shall be punished by the court at its discretion.

CHAPTER X.

FACTS INCIDENT TO THE TRIAL.

Behavior of Members. All members of a courtmartial are to behave with decency and calmness.1

It is rare that any grounds of complaint arise upon this score; but, during the war, the reviewing officer of a general court-martial reported "that the members of the court were guilty of 'conduct prejudicial to good order and military discipline,' in drinking with the accused at various times and holding private conversations with his counsel, and of other irregularities, going to show that they had no proper sense of their duty, or appreciation of the obligations of their solemn oaths ;" and recommended the dismissal of the members, whereupon the President dismissed seven members. In time of peace for any improper behavior, a member would render himself liable to trial.

A court-martial cannot itself punish one of its members for disorderly behavior.

At a general court-martial assembled at Oregon City Nov. 16, 1849, Capt. and Brevet Lieut. Col. Backenstos― senior member and presiding officer of said court-martial— was sentenced "to be expelled from the court, and to be cashiered" for positive, willful, and repeated contempt of court. The specification named that "Captain B. did refuse to put a motion for the adjournment of the court; did violently assert that he only had authority to order the adjournment; did arbitrarily declare the court ad

1 Article 87.

2 G. C. M. O. 123, A. G. O. March 8, 1865.

journed; and did boisterously leave the court in defiance of its expressed will; that, being called to return, he did refuse; that, being then ordered into arrest by the court, he did, on the next day of the session, attempt to take his seat as presiding officer, and did remain in the court after it was ordered to be cleared, and did disturb the proceedings till peremptorily ordered to retire."

The President disapproved the proceedings on the ground that the 76th (present 86th) article did not confer on a court-martial power to punish its own members. He further stated that "the presiding officer of a court-martial (besides the duties and privileges of a member) is only its organ. He speaks and acts for it in each case, when the particular rule has been prescribed by law, regulation, or its own resolution. He announces the adjournment when the prescribed hour has arrived. He cannot adopt an hour different from that which has been prescribed, without the approbation of a majority of the court when in session. This right of regulating its own sessions is important and necessary, and the limitation placed on it by the 72d Art. of War (present 95th) was obviously intended to secure full and fair deliberation. In this and all deliberations of the court, the equality of the several members was intended to be preserved. It is not doubted that any disorderly conduct of a member of a court-martial to the prejudice of good order and military discipline would constitute an offense cognizable by another court under the Article of War applicable to the case." 1

Where an officer, a member of a court-martial, refused to make any explanation in regard to his absence from the court, it was held a contempt of court, though, in this case, not triable by the court to which the contempt was offered.2

2

1G. O. 14 R. G. O., April 12, 1850. Army and Navy Jour., Feb. 17, 1877.