« PreviousContinue »
whether the court kept within its proper jurisdiction. The record should also show that the accused was present before the court, and that the charges were investigated. But the testimony, except under very peculiar circumstances, need not be recited, nor need it be set forth that the accused had an opportunity to introduce evidence, or make a statement. Though it is preferable that the record of each case should be made up separately, it is not a fatal irregularity if the proceedings in a number of cases are united, and accompanied by a single copy of the order detailing the court instead of repeating it in each case.
It is not deemed essential to the validity of a field officer's court that the accused should appear from the record to have had an opportunity to challenge. It is advisable, however, if any valid objection to being tried by the field officer detailed as the court is presented by the accused, that such objection should be set forth in the record as a fact for the information of the reviewing officer.
Revision. Where a court is reconvened for amendment or alteration of its action, the proceedings should be recorded with the same formality as before ; authenti. cated in the same way; and submitted for the orders of the reviewing authority. The order reconvening the court should appear upon the record, which should also show the members present and absent, the presence of the judge-advocate, accused and counsel, and the action taken by the court.
Lost Record. Where the record of a court-martial is lost before any action is taken upon it by the reviewing authority, it is held that the proceedings against the accused are terminated, unless the court could be reconvened and a new record could be made out from extant
original notes of the proceedings, and could be duly authenticated by the signatures of the president and judgeadvocate. Where the proceedings have been confirmed and afterwards lost, this constitutes no legal obstacle to the enforcement of the penalty. Where the record was lost in transitu to the President, in a case where the execution of the sentence was suspended to await his action under the 11lth Article of War, the President could not review or act upon the proceedings, unless possibly the history of the case could be supplied from original papers made out by the judge-advocate, and duly authenticated by him. In the absence of any such the President would be justified in withholding his approval from the proceedings, and declaring the sentence inoperative.'
Transmittal of Proceedings. The judge-advocate, or recorder, is required to transmit without delay the original record of the proceedings, findings, and sentence, duly authenticated, to the officer having authority to confirm the sentence.?
The original proceedings of all general courts-martial after the decision thereon of the reviewing authority, and all such proceedings requiring the decisions of the President, should be forwarded directly to the Judge-Advocate General of the Army, in whose office they are required to be carefully preserved."
The proceedings of the minor courts are required to be transmitted without delay, by the garrison or other commander to the department headquarters, for the supervision of the department commander ;' and, after having been filed at these headquarters for two years, these records may be destroyed.
Party entitled to Copy. Every party tried by a
Opinions J. A. G. p. 216. 4 Regulations, par. 898.
Regulations, par. 896.
3 Art. 113. 5 G. O. 28, A, G, O. March 29, 1877.
general court-martial, upon demand thereof, made by himself, or by any person in his behalf, is entitled to a copy of the proceedings and sentence of such court. 1&2
The Judge-Advocate General holds that by the reading of the law, an accused would not be entitled to be furnished with a transcript of any recommendation to mercy which may have been signed by the members upon the conclusion of the trial, as this is merely an informal private communication addressed to the reviewing officer.
A copy of the record may be furnished to a party other than the accused, and not applying in his behalf, by order of the Secretary of War. It remains for him to decide in what cases such action would be proper.:
Fatal Defects in Record. Great care is necessary in making up the record of court-martial proceedings. The following errors and omissions will be fatal to the validity of the sentence, unless they are corrected upon a reassembling of the court :
1. Where the record does not contain a copy of the order appointing the court, or copies of all orders modifying the detail in any manner.
The record of each case must contain a copy of these orders.
2. Where, in a court of less than thirteen members, the copy of the order in the record does not contain the statement that no other officers than those named can be assembled without manifest injury to the service.”
3. Where the copy of the order in the record does not show by what officer the court was convened.
4. Where the record does not show that the court met pursuant to the order constituting it.
1 Art. 114.
· He is also entitled to a copy of the reports thereon to, and the action of the reviewing authorities, in the Articles recently proposed.
3 Opinions J. A. G. p. 252.
5. Where the record does not show that the court was organized as the law requires.
To state in the record, “ The court being in session proceeded,” etc., does not sufficiently set forth the organization.
6. Where the record does not show how many members were present each day and took part in the trial, or how many were present at a re-assembling for revision.
7. Where the record of a general court-martial shows that less than five members conducted the trial.
8. Where the record does not show that the judgeadvocate was present during the trial.
9. Where the record does not show that the order convening the court was read in the presence of the accused, or that he had opportunity of challenge afforded him, either to a member then sitting, or to one who subsequently took his seat.
10. Where the record does not show that the members of the court were severally duly sworn by the judge-advocate in the presence of the accused.
11. Where it does not show that a member who subsequently took his seat was thus sworn.
12. Where the record does not show that the judgeadvocate was duly sworn by the president in the presence of the accused, or that a new judge-advocate who subsequently took his seat was similarly sworn.
13. Where the record does not contain a copy of the charges and specifications upon which the accused is tried.
14. Where the record does not show that the accused was allowed to plead, or shows that he was tried without pleading to the merits, or does not contain his entire plea.
15. Where the record shows that the accused was arraigned and pleaded prior to the organization of the court.
16. Where the record does not show that the witnesses
That they were not sworn in the presence of the accused would not constitute a fatal defect.
17. Where it does not set forth the testimony of the witnesses.
It is not sufficient to set forth a summary, or such portion as the judge-advocate deems material. The full testimony of the witness in his own language should be given.
18. Where the record does not show that a clerk, or reporter, who recorded the proceedings of the court, was sworn to a performance of his duties.
19. Where it does not show that an interpreter was so
If an interpreter was called to interpret the testimony of a single witness, and the record did not show that he was sworn, it would not be a fatal defect; provided, there was sufficient evidence to convict without the testimony of this witness.
20. Where the record shows affirmatively that the court commenced its sessions before eight o'clock A. M., or continued in session after three o'clock P. M., and sets forth no authority therefor from the officer appointing the court.
It will be presumed, in the absence of evidence to the contrary, that a court did not sit beyond the prescribed hours,
21. Where the record does not show that the court was closed for deliberation on findings and sentence.
22. Where the record does not contain the findings and sentence.
23. Where there is a fatal variance between the name
Opinions J. A. G. p. 34.